Federally Mandated Notices Guide for Group Health and Welfare Plans

Transcription

1 Federally Mandated Notices Guide for Group Health and Welfare Plans This guide highlights basic group health and welfare plan reporting and disclosure responsibilities required under the Employee Retirement Security Act of 1974 (ERISA) and other Federal mandates. IRS and regulatory requirements are subject to change at any time. This is a Federal resource only and does not cover individual State mandates; therefore, this should not be relied upon as a plan s sole resource for compliance matters. Frenkel Benefits, LLC does not provide legal or tax advice. Please consult with a legal or tax professional regarding your specific situation. Property of Frenkel Benefits, LLC; not for use with the general public. Revised July 2010

2 I. Federally Mandated Notices Timetable Quick Reference 1. Written Plan Documents Plan Documents Newly Eligible New Enrollee Quarterly Annually Every 3 years Every 5-10 years On Plan Changes On Occurrence Section 125 Cafeteria Plan Document Summary Plan Description (SPD) On Request Coverage Termed COBRA coverage Termed Summary of Material Modification (SMM) Summary of Material Reduction in Covered Services or Benefits IRS Form 5500 Annual Report Summary Annual Report (SAR) 2. Coverage Continuation through COBRA and/or USERRA Initial/General COBRA Notice COBRA Election Notice Notice of Unavailability of COBRA Continuation Coverage Notice of Early Termination of COBRA Coverage Uniformed Services Employment & Reemployment Rights Act (USERRA) 3. Health Insurance Portability and Accountability Act (HIPAA) P. 3 P. 3 P. 3 P. 3 P. 4 P. 4 P. 4 P. 4 P. 4 P. 5 P. 5 P. 5 Summary Plan Description Open Enrollment & New Hire Materials HIPAA Policies and Practices (Privacy, Security and HITECH) HIPAA Business Associate Agreement (BAA) P. 5 HIPAA Notice of Privacy Practices HIPAA Breach Notification HIPAA Notice of Special Enrollment Rights General Notice of Pre-existing Condition Exclusion Individual Notice Period of Pre-existing Condition Exclusion P. 5 P. 6 P. 6 P. 6 P. 6 P. 7 HIPAA Certificate of Creditable Coverage P. 7 Wellness Program Disclosure P. 7 1

3 Federally Mandated Notices Timetable Quick Reference, Page 2 Newly Eligible New Enrollee Quarterly Annually Every 3 years Every 5-10 years On Plan Changes On Occurrence On Request Coverage Termed COBRA coverage Termed Summary Plan Description Open Enrollment & New Hire Materials 4. Medicare Medicare Part D Disclosure to CMS Medicare Part D Notice to Eligible Individuals Medicare Section 111 Reporting 5. General Women s Health and Cancer Rights Act (WHCRA) Newborns and Mothers Health Protection Act (NMHPA) Opt-out Mental Health Parity and Addiction Equity Act Notice Employer Medicaid and CHIP Eligibility Notice Qualified Medical Child Support Order (QMCSO) Family and Medical Leave Act (FMLA) Notice to Employees Regarding P. 7 P. 7 P. 8 P. 8 P. 8 P. 8 P. 9 P. 9 P. 9 Contributions to HSA P Healthcare Reform Mandated Notices Dependent Extension to Age 26 Notice P. 10 Grandfathered Plan Status Notice P. 10 Lifetime Limits Notice P. 10 Bill of Rights Patient Protection Notice P. 10 2

4 II. Federally Mandated Notices Descriptions Item Description Due Date Citation Penalty Written Plan Document Requirements Plan Documents Applies to ERISA benefit plans. The written instruments under which the plan is established and operated in order that every employee may in examining the plan documents, determine exactly what his rights and obligations are under the plan. Each benefit must have its own plan document that designates a named fiduciary, and plan administrator, the plan year, plan name and plan number, include a description of benefits and eligibility, how benefits will be funded, plan amendment and termination procedures, required provisions for group health plans, including COBRA, USERRA, HIPAA, QMCSOs, and subrogation and reimbursement clauses. The following documents together could be determined to be Plan Documents: Summary Plan Description (SPD), most recent annual report, trust agreements, carrier contracts and policies. Should employer offer several benefit plans, they may all be bundled together into a single ERISA plan through of a wrap or umbrella document which wraps itself around a set of other documents to combine them into one legal document. Therefore, only one Form 5500 will have to be filed. Must be provided to participants and beneficiaries within 30 days of written request. ERISA 104, 29 CFR b-1(b) Plan administrator could be subject to a penalty of up to $110 per day. Section 125 Cafeteria Plan Document Applies to every employer that permits employees to pay for benefits with pre-tax dollars. Must have a written document containing the operating rules of the plan, descriptions of each qualified benefit available (i.e., health premiums, health FSA, dependent care spending accounts, HSA, etc.), grace period availability, eligibility rules, manner of contributions, maximum employer and employee contributions, ordering rules, plan year, election procedures, timing of and irrevocability of participant elections, allowable qualified changes, claims and reimbursement procedures, substantiation rules, health FSA uniform coverage and use-it-or-lose-it rule (if applicable), run-out period description, and amendment procedure. Must be formally adopted on or before the first day of the first plan year. Prop. Treas. Reg (c), 26 USC 125(d), 26 USC 105, 26 USC 129 Failure to adopt plan document prior to the plan s effective date or failure to operate in compliance with the document or the regulations can result in disqualification of the plan s favorable tax status. Summary Plan Description (SPD) Advises participants and beneficiaries of their rights and obligations under the plan. Should be written in plain language so that the average participant can understand. Must include plan name, employer name, type of plan, type of administration, plan administrator name/address/telephone number, legal agent name/ address, plan eligibility requirements, summary of benefits, claims procedures, and Employee Retirement Income Security Act (ERISA) rights. Model language for ERISA Rights Statement provided in Model Notices section of this document under Attachment A. Must be provided to participants and beneficiaries within 90 days of participation, within 120 days of plan becoming subject to ERISA, every 5 years for an amended plan, and every 10 years for an unamended plan. ERISA 104(b) (a) b-2 No specific civil penalties, but willful ERISA violations can carry criminal penalties up to 10 years in prison and $100,000 fine. Summary of Material Modification (SMM) Summarizes any material modification to the plan and any change in the information required to be in the SPD. Should be written in plain language so that the average participant can understand. Any SMMs that are not yet included in an SPD must be distributed along with the SPD until a revised SPD is distributed. Therefore, any outstanding SMMs must also meet the due date requirements of the SPD, which are listed above. Distribution of updated SPD nullifies this requirement. Must be provided to participants and beneficiaries within 210 days of the end of the plan year in which the modification is adopted. ERISA 104(b) b-3 No specific civil penalties, but willful ERISA violations can carry criminal penalties up to 10 years in prison and $100,000 fine. 3

5 Summary of Material Reduction in Covered Services or Benefits (SMR) Summarizes any modification or change to covered services or benefits that would be considered by the average participant to be an important reduction such as eliminates or reduces benefits payable, increases amount to be paid by participant, reduces HMO service area, or creates new conditions or requirements for obtaining services or benefits. Must be provided to participants and beneficiaries within 60 days of when change was adopted. ERISA 104(b) (1)(B) b-3 No specific civil penalties, but willful ERISA violations can carry criminal penalties up to 10 years in prison and $100,000 fine. IRS Form 5500 Annual Report Applies to health and welfare plans subject to ERISA. Serves as the annual reporting requirement for ERISA benefit plans. There is an exclusion for certain fringe benefit plans (group legal services, education assistance plans, adoption assistance programs) and welfare plans with less than 100 participants at the beginning of the plan year which are unfunded, insured, or a combination of the two. Must be submitted electronically (along with the necessary Schedules) to the Employee Benefits Security Administration (EBSA). Must be submitted by the last day of the 7th month following the end of the plan year, or by the extension due date, if Form 5558 is filed. ERISA 104(a)(1) ERISA 104(a)(3) USC 6039D IRS Bulletin Both administrative and criminal penalties apply. Administrative penalties range from $25 per day to $1,100 per day. Willful violations can carry penalties up to 10 years in prison and a $100,000 fine. Summary Annual Report (SAR) Summarizes the Form 5500 financial information in an understandable narrative form. The model language from b-10(d) has been provided in the Model Notices document under Attachment B. participants and beneficiaries receiving benefits within 9 months after the end of the plan year. If extension is filed, must be distributed within 2 months after the end of the period for which the extension was granted. ERISA 104(b)(3) b-10 No specific civil penalties, but willful ERISA violations can carry criminal penalties up to 10 years in prison and $100,000 fine. Coverage Continuation Through COBRA and/or USERRA Notice Requirements Initial COBRA Notice (also known as COBRA General Notice ) The Consolidated Omnibus Budget Reconciliation Act (COBRA) applies to group health plans sponsored by employers with 20 or more employees in the previous calendar year. This Notice is provided to new participants to inform them of their COBRA rights, what consists of an eligible qualifying event and when they are required to notify employer of qualifying events. Revised model language is provided in Model Notices document under Attachment C. new participants (and spouses) within 90 days of regular active coverage start date. ERISA 606(a)(1) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. If violation is not corrected within 30 days of discovery, then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. COBRA Election Notice Notifies qualified beneficiaries of their right to continue coverage following a qualifying event. Should be written in understandable language so that the average participant can understand. Must include the plan name, administrative contact name/address/telephone number, qualifying event, coverage termination date, qualified beneficiaries (QBs), statement that each QB has an independent right to elect continuation coverage, election procedures, election deadline, consequences of not electing coverage, coverage description, payment information, and a statement that Notice does not fully describe all rights and that more information can be obtained from the SPD. COBRA has been amended by the American Recovery and Reinvestment Act of 2009 (ARRA), and several other Acts to provide premium assistance subsidies for certain QB s with an involuntary termination. Revised model language is provided in Model Notices document under Attachment C (1). Employer has 30 days to notify plan administrator of qualifying event; plan administrator must distribute Notice to covered employees, spouse, and dependents within 14 days of employer notification. If employer and plan administrator are same, there is a combined 44 days for qualifying events in which the employer is required to provide notice. Longer periods may apply for multiple employer plans. ERISA (a-b) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. Additionally, employer may be held liable for any medical costs incurred by participant. If violation is not corrected within 30 days of discovery, then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. 4

6 Notice of Unavailability of COBRA Coverage Notifies and gives explanation as to why individual is not entitled to COBRA continuation coverage. Should be written in understandable language so that the average participant can understand. Administrators are required to respond to a notice of second qualifying event if it is determined that the qualified beneficiary identified in the notice is not entitled to an extension of the COBRA maximum coverage period, or the request was given too late. This Notice is also suggested to be sent in situations where receiving such would help to avoid misunderstandings and disputes. Plan administrator must furnish notice within same time period as COBRA election notice (above) - 14 days after administrator receives notice of qualifying event; by measures reasonably calculated to ensure actual receipt of the material (c) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. COBRA Notice of Early Termination of Coverage Notifies a qualified beneficiary that continuation coverage will terminate earlier than the maximum allowable coverage period. Should be written in plain language so that the average participant can understand. Must include explanation of any conversion rights and reason for early termination which may be because COBRA premiums are not paid in full on a timely basis; employer ceases to provide any group health plan to any employee; qualified beneficiary becomes covered under another group health plan after electing COBRA; qualified beneficiary becomes entitled to Medicare after electing COBRA; disabled qualified beneficiary whose disability caused an extension of the COBRA maximum coverage period is determined not to be disabled; or the qualified beneficiary s COBRA coverage is terminated for cause. A notice is not required when COBRA coverage ends because the COBRA maximum coverage period has expired, but is recommended. qualified beneficiary as soon as practicable following the administrator s determination that continuation coverage shall term (d) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. If violation is not corrected within 30 days of discovery, then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. Uniformed Services Employment and Reemployment Rights Act (USERRA) Applies to all employers regardless of size. Employees absent from work due to uniformed service must be offered the option to continue, at their own expense, group health coverage for a period up to 24 months. For periods of leave of 30 days or less, employer must continue to pay normal share of premiums. Typically USERRA language is included with the COBRA notices and employee is given opportunity to choose which option in which to enroll (USERRA or COBRA). The model language from the DOL has been provided in Model Notices document under Attachment D. Employer must post or distribute a notice to employees of the Act s provisions. Also, when coverage terminates include Notice along with COBRA Election Notice, if employer knows employee is leaving for service in the US Armed Forces. 38 USC 4334(a) Legal action may be brought by employee or DOL. Health Insurance Portability and Accountability Act (HIPAA) Notice Requirements HIPAA Privacy, Security and HITECH Policies and Practices Requires health plans (fully insured plans are excluded) to establish written privacy, security and HITECH policies and procedures for defining protected health information (PHI), creating, receiving, maintaining, and transmitting electronic PHI, including permitted uses and disclosures, authorization requirement for other uses and disclosures, designation of privacy official and privacy contact, sanctions for violations, privacy safeguards, complaints procedure, prohibition of retaliation, waiver of rights, documentation and record retention, and establish or amend business associate agreements. Must also include provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act. Plans must continually maintain updated written policies and procedures. 45 CFR 164 Civil penalties range from $100 to $50,000 per violation. Criminal penalties may also apply including a fine up to $250,000 and imprisonment up to 10 years. HIPAA Business Associate Agreement (BAA) Requires that health plans/covered entities obtain written statements from business associates that the associates are appropriately using, disclosing, and safeguarding PHI. A fully-insured plan is excluded if the only information they receive/handle is summary health information and enrollment information. All BAAs must contain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act. Agreements should have been updated to reflect HIPAA Security and HITECH provisions and redistributed now. 45 CFR (e) Civil penalties range from $100 to $50,000 per violation. Criminal penalties may also apply including a fine up to $250,000 and imprisonment up to 10 years. 5

7 HIPAA Notice of Privacy Practices Requires self-insured group health plans (fully insured plans are excluded) to notify participants of their privacy rights, plan s responsibilities, privacy contact, effective date, and the plan s permitted uses and disclosures of PHI. The original notice should have been distributed to participants by 04/14/03 for large plans and 04/14/04 for small plans. Must be updated to reflect provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act. new enrollees at the time of enrollment and to all participants within 60 days of a material change. Once every three years a notice must be distributed notifying participants that a Notice is available and instructions for receiving a copy. 45 CFR Civil penalties range from $100 to $50,000 per violation. Criminal penalties may also apply including a fine up to $250,000 and imprisonment up to 10 years. HIPAA Breach Notifications Applies to covered entities and business associates. Covered entity must notify affected individuals in writing if their unsecured PHI has been breached. Notice must include description of what happened; date of breach; date of discovery; type of information breached; what individuals should do to protect themselves; what covered entity is doing to investigate breach, mitigate harm and protect against future breaches; and contact information to ask questions or learn additional information. If breach affects more than 500 individuals in the same state, the Health and Human Services (HHS) Secretary and prominent media outlets in the area must be notified. Information involving breaches affecting fewer than 500 must be maintained in a log and reported to HHS annually. If business associate experiences breach, they must contact the covered entity with the information required to be included in the participant notice. Notice must be sent to affected individual, media outlet, HHS, or covered entity without unreasonable delay but no later than 60 days following the breach discovery date. The annual notification to HHS is due within 60 days following the end of the calendar year. 45 CFR , 45 CFR , 42 USC 1320d-6(b) Civil penalties range from $100 to $50,000 per violation. Criminal penalties may also apply including a fine up to $250,000 and imprisonment up to 10 years. HIPAA Notice of Special Enrollment Rights Notifies eligible participants of special enrollment rights including a description of special enrollment events: Loss of Health Coverage; Acquisition of New Dependent by Marriage, Birth, Adoption, or Placement for Adoption; Special Enrollment for Loss of Medicaid or SCHIP Coverage; Eligibility for State Premium Assistance Subsidy From Medicaid or SCHIP; and enrollment procedures. The model language from (c)(1) has been provided in the Model Notices document under Attachment F. eligible participants at or before the time an employee is initially offered the opportunity to enroll in a group health plan. ERISA 701(f) (c) IRC 9801(f) The Department of Health and Human Services (HHS) may impose a penalty of $100 per failure to comply up to a maximum of $25,000 per year. If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. HIPAA General Notice of Pre-existing Condition Exclusion Applies to a group health plan (or issuer) that imposes a pre-existing condition exclusion. Must include the existence of any plan exclusion relating to pre-existing conditions, the terms of the exclusion, right to provide proof of creditable coverage, right to request certificate of creditable coverage from prior plan or issuer, contact name/address/ telephone number, and statement that current plan or issuer will assist in obtaining prior certificate, if necessary. Model language is provided in Model Notices document under Attachment G. Note: This Notice will become unnecessary for participants/dependents under age 19, on the plan s renewal occurring after September 23, 2010; and completely unnecessary on January 1, 2014 when Health Care Reform prohibits pre-existing condition exclusions. eligible participants as part of any written application materials distributed by the plan or issuer for enrollment. If enrollment materials are not distributed, at the earliest date possible following enrollment request. ERISA 701(a-e) (c) HHS may impose a penalty of $100 per failure to comply up to a maximum of $25,000 per year. If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. 6

8 HIPAA Individual Notice of Period of Pre-existing Condition Exclusion Notifies participant of the length of time remaining after reducing the maximum exclusion period by the amount of time documented in a certificate of creditable coverage. Must include exclusion period remaining for participant, last day of period, source or basis of determination, right to submit additional creditable coverage, and description of any appeal procedures. Note: This Notice will become unnecessary for participants/dependents under age 19, on the plan s renewal occurring after September 23, 2010; and completely unnecessary on January 1, 2014 when Health Care Reform prohibits pre-existing condition exclusions. participants who have submitted a certificate of creditable coverage documenting less than the maximum exclusion period by the earliest date following a determination (e) HHS may impose a penalty of $100 per failure to comply up to a maximum of $25,000 per year. If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. HIPAA Certificate of Creditable Coverage Certifies prior group health plan creditable coverage. Must include issue date, individual s name/identification, and administrator name/address/ telephone number. Model language is provided in Model Notices document under Attachment E. Note: This Notice will become unnecessary for participants/dependents under age 19, on the plan s renewal occurring after September 23, 2010; and completely unnecessary on January 1, 2014 when Health Care Reform prohibits pre-existing condition exclusions. participant upon loss of coverage (timeframe same as Election Notice); upon loss of COBRA coverage ( as soon as practicable ); upon request within 2 years of loss of coverage ( promptly ). ERISA 701(e) IRC 9801(e) Internal Revenue Service (IRS) may assess a $100 per day penalty. If violation is not corrected within 30 days of discovery, then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day would be assessed. HIPAA Wellness Program Disclosure Notifies participants of group health plan offering a wellness program, which requires individuals to meet a standard related to a health factor in order to obtain a reward, of the availability of a reasonable alternative standard, or the possibility of a waiver of the otherwise applicable requirement. Must be provided in all plan materials that describe the terms of the wellness program; unless there is merely a mention that a program is available, without describing its terms. Model language is provided in Model Notices document under Attachment Q. participants and beneficiaries upon eligibility to participate in a wellness program that requires individuals to meet a standard related to a health factor in order to obtain a reward (f)(2)(v) Penalties have not yet been announced. Medicare Notice Requirements Employer s Medicare Part D Disclosure to CMS - Applies to group Applies to group health plans that offer prescription drug coverage to Medicare eligible individuals. Entities that are contracted directly with Medicare as a Part D plan provider are exempt. Plan must disclose to CMS whether the plan s prescription drug coverage is creditable or noncreditable. Must complete form on CMS website: creditablecoverage. The online notification must be completed annually within 60 days of beginning of plan year, within 30 days of prescription drug plan termination; and within 30 days of a change in the creditable coverage status. 42 CFR (e) Specific penalties have not yet been announced. However, an employer who is claiming the retiree drug subsidy would no longer be eligible for the subsidy. Medicare Part D Creditable or Non- Creditable Notice to Eligible Individuals Applies to group health plans that offer prescription drug coverage to Medicare eligible individuals. Entities that are contracted directly with Medicare as a Part D plan are exempt. Notice must be sent to Medicare Part D eligible individuals. Notice must include the determination of whether the plan s prescription drug coverage is creditable or non-creditable, the definition of creditable coverage, an explanation of why creditable coverage is important, an explanation of the individual s right to notice, and an explanation of benefit plan provisions that affect Medicare Part D eligible individuals. If the coverage is non-creditable, must also include a statement that an individual can generally only enroll in Medicare Part D during November and December of each year. Creditable Coverage model language is provided in Model Notices document under Attachment L. Non-Creditable Coverage model language is provided in Model Notices document under Attachment L(1). On an annual basis prior to November 15; prior to an individual s Initial Enrollment Period for Medicare Part D; prior to a Medicare eligible individual s effective date with the plan; upon a change to the creditable coverage status; upon the prescription drug plan s termination; and upon a beneficiary s request. 42 CFR (c-f) Specific penalties have not yet been announced. However, an employer who is claiming the retiree drug subsidy would no longer be eligible for the subsidy. Note: Retiree Drug Subsidy is being terminated by the Health Care Reform in

9 Medicare Section 111 Reporting Applies to group health plans other than health FSAs, HSAs, and stand alone vision, dental, and prescription plans. The reporting assists CMS in determining coordination of benefit responsibilities between the group health plan and Medicare. Responsible Reporting Entity (RRE) is the insurer for fully-insured plan, the TPA for self-funded plan, and the plan administrator for self-funded plan that self-administers. Information to be reported includes the social security number (or Medicare Health Insurance Claim Number), gender, name, and date of birth of certain active covered individuals. Information must be reported to CMS on a quarterly basis. HRA reporting begins 4th Quarter USC 1395y(b) RRE shall be subject to civil money penalty of $1,000 per day per individual not reported. General Notice Requirements Women s Health and Cancer Rights Act (WHCRA) Requires group health plans that provide medical and surgical mastectomy benefits to notify participants that the plan provides certain benefits for reconstructive surgery, prostheses, and physical complications. Model language is provided in Model Notices document under Attachment H. participants upon enrollment and annually. ERISA 713(b) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. Newborns and Mothers Health Protection Act (NMHPA) Establishes minimum length of stays for self-insured health plans that provide benefits for hospital stays related to childbirth. A stay for a vaginal delivery must be no less than 48 hours and 96 hours for a cesarean section. Fully insured plans would be subject to any applicable state laws. Model language is provided in the Model Notices document under Attachment I. Must be disclosed in SPD. ERISA (u) Legal action may be brought by participant and an ERISA $110 per day fine may be assessed. If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. Opt-out of Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) Applies to fully and self-insured group health plans that provide coverage for mental health and substance use disorder. (Plans sponsored by employers with 50 or less employees are exempt as well as self-funded non-federal governmental plans ). If benefits are offered, requires that coverage for mental health and substance use disorder be equal to that provided for other medical conditions including co-payments, deductibles, annual or lifetime maximum benefits, and limitations related to the number of visits. Employer may apply to opt-out of the requirement to offer benefit if the plan has complied with the parity requirements for first 6-months of plan year involved and if the actual cost of adding benefit exceeds 2% of the total plan costs in first plan year benefits are added and then 1% in subsequent year. If opt-out is granted employees must receive notice that includes the following information: even though Federal law imposes these requirements on group health plans this plan has elected to apply for and received exemption, in whole, or in part, from the listed requirements; explanation of what provisions are exempted; if any provisions are not exempt under State law; statement informing plan enrollees that plan provides for certification and disclosure of creditable coverage for covered employees and their dependents who lose coverage under the plan. Model language is provided in the Model Notices document under Attachment J. For initial plan year that optout election applies, a noncollectively bargained plan must provide the annual notice to current enrollees before first day of plan year and at the time of enrollment for new enrollees. For subsequent plan years for optout election, current enrollees must receive annual notice no later than the last day of the plan year, and new enrollees must receive notice at enrollment. ERISA CFR (f) CMS enforces these requirements which may include imposing a civil money penalty against the plan or plan sponsor, If violation is not corrected then employer must self report violation on IRS Form 8928 and a civil penalty of $100 per day will be assessed. 8

10 Eligibility for Premium Assistance Under Medicaid or CHIP Notice (Employer CHIP Notice) Employer is required to provide this Notice if they provide medical benefits for medical care, whether through insurance or reimbursement, and employ residents of states that provide medical assistance or child health assistance under a state Medicaid or state child health plan (CHIP). The following states meet this standard: AL, AK, AZ, AR, CA, CO, FL, GA, ID, IN, IA, KS, KY, LA, ME, MA, MN, MO, MT, NE, NV, NH, NJ, NM, NY, NC, ND, OK, OR, PA, RI, SC, TX, UT, VT, VA, WA, WV, WI, and WY. Model language is provided in the Model Notices document under Attachment K. Employers are initially required to provide this notice by the date that is the later of: the first day of the first plan year after February 4, 2010, or May 1, (January 1, 2011 for calendar plan years.) Notices must be distributed annually by the first day of the plan year each year. Code 9801(f)(3) (B)(i) Civil penalties of up to $100 a day for failure to comply with the new notice and disclosure requirements may be assessed. Qualified Medical Child Support Order (QMCSO) and National Medical Support Notice (NMS) Requires that a group health plan establish written procedures for determining the qualification of a Medical Child Support Order (MCSO). When an order is received, it identifies a child of a plan eligible participant and the child s (alternate recipient s) right to receive benefits under a group health plan. The plan administrator must respond to the issuing state authority with the determination of whether the order is qualified and if coverage is available. If so, administrator must take appropriate action to enroll child in benefits and must respond to the state authority with the coverage effective date, description of coverage, and any action necessary from alternate recipient. A copy of the determination should also be provided to the employee/participant. Employer must forward to administrator or respond directly to state authority within 20 days. Plan administrator must respond to state authority within 40 days of receiving order; ERISA 609(a) Legal action may be brought by alternate recipient or state authority. Family and Medical Leave Act (FMLA) Applies to employers with 50 or more employees within 75-mile radius also applies to governmental employers regardless of the number of employees. Requires the employer to provide employees with up to 12-weeks of unpaid, job protected leave. Must provide eligible employees with up to 26-weeks of unpaid leave to care for a family member who is seriously ill or injured or has condition aggravated as a result of active duty military service. The employer must maintain group health insurance coverage during the leave as if the employee were actively at work. A notice of the Act s provisions must be posted in the workplace. Employer must provide a general informational notice to all employees. For those employees requesting leave, the employer must provide notice designating their leave under FMLA and a notice of eligibility and rights and responsibilities. Model language is provided in the Model Notices document under Attachments M, N and O. General notice must be posted in workplace. General notice must also be distributed to new employees or included in employee handbook. Employer must provide written notice of Eligibility and Rights & Responsibilities to employee within 5 days of being notified of employee s need for leave. Designation notice must be provided within 5 days of the employer receiving enough information to make a determination whether the leave is being taken for a qualifying reason. 825; 29 USC 2619 The DOL may assess a civil penalty for failure to post notice. For other violations, legal action may be brought by employee or DOL. Notice to Employees Regarding Employer Contributions to HSA Applies to employers who make a contribution to employee health savings accounts (HSAs) and who have participants who have not established an HSA by December 31. HSAs under a Section 125 Cafeteria Plan are exempt. Must include a statement that each HSA-eligible employee will receive a comparable employer contribution if by the last day of the following February, the employee s HSA is established and the employee notifies the employer of the account. Model language is provided in Model Notices document under Attachment P. Employer must provide to all HSA eligible participants (or only those who have not timely established an HSA) no earlier than 90 days before the employer s first HSA contribution for the calendar year and no later than January 15 of the following calendar year. Prop. Treas. Reg G-4, Q/A 14 Prop. Treas. Reg G-1, Q/A 4 72 Fed. Reg (June 1, 2007) May result in failure of the HSA comparability rules, which carry a penalty of 35% excise tax for the employer on all calendar year employer contributions. 9

11 New Health Care Reform Mandated Notices Dependent Extension to Age 26 Notice Health care reform interim final regulations extending dependent coverage to age 26 require plans to provide a 30-day enrollment opportunity along with a written notice explaining the opportunity to enroll. This special open enrollment period must be offered regardless of whether the plan offers a traditional open enrollment period for all other eligibles. Should a dependent be enrolled, the coverage must be effective as of the first day of the first plan year beginning on or after September 23, The notice may be included with other enrollment materials as long as the statement is prominent. Model language is provided in Model Notices document under Attachment R. The written notice and enrollment opportunity must be provided no later than the first day of the first plan year beginning on or after September 23, Health Care Reform- PPACA Unknown Grandfathered Plan Status Notice The Patient Protection and Affordable Care Act, as amended provides that a plan that was in effect as of March 23, 2010, may be considered a Grandfathered Plan which protects it from having to conform to some of the health care reform provisions, as long as the only changes made are cost adjustments to keep pace with medical inflation, new benefits are added, only modest adjustments are made to existing benefits, or they voluntarily adopt health care reform consumer protections or changes to comply with state or federal laws. To maintain the Grandfathered status, a plan must include a statement that it is considered a Grandfathered Plan by the plan sponsor in all plan materials distributed to participants that describe the plan s benefits. Model language is provided in Model Notices document under Attachment S. A statement that the plan is considered a Grandfathered Plan must be included in all plan materials that describe the plan s benefits. Health Care Reform- PPACA Section 1251 Unknown Lifetime Limits Notice The Patient Protection and Affordable Care Act, as amended and the Patient Bill of Rights provide that a plan may not impose a lifetime limit on coverage for plan years following September 23, All plans must provide a written notice to inform plan participants that there is no longer a lifetime dollar limit on their essential benefits. By removing the lifetime limit, any individual whose coverage ended because they reached the lifetime limits of their plan, is then eligible to re-enroll in the plan. Once they are covered again, they will be fully eligible for all benefits of the plan. If such individual is not enrolled in the plan, the plan must also provide this individual a 30-day open enrollment opportunity that is explained in the written notice of the opportunity to enroll. Coverage must be effective not later than the first day of the first plan year beginning on or after September 23, Model language is provided in Model Notices document under Attachment T. The notice must be provided to all of those eligible to enroll in the plan, no later than the first day of the first plan year beginning on or after September 23, Notices may be included with other enrollment materials distributed to employees, as long as the statement is prominent. Health Care Reform- PPACA Unknown Bill of Rights Patient Protection Notice The Patient Protection and Affordable Care Act, as amended and the Patient Bill of Rights provide that when applicable, individuals enrolled in a managed care plan that requires a designation of a primary care physician (PCP) will need to know of their rights to (1) choose a primary care provider or a pediatrician; and (2) the ability to directly obtain obstetrical or gynecological care (OB/GYN) without prior authorization. The interim final regulations regarding patient protections require plans to provide a notice to participants of these rights. This does not apply to grandfathered plans. Model language is provided in Model Notices document under Attachment U. The notice must be provided whenever the plan provides a participant with a summary plan description (SPD) or other similar description of benefits, such as the open enrollment material, for plan years following September 23, Health Care Reform- PPACA Section 2719A Unknown 10