Legal & Research Group Employee Benefits Alert Issue No. 40 June 2005 Legislative & Compliance Benefits Brokerage & HR Consulting Services Rx Purchasing Coalition Data Analysis Benefits Administration Predictive Modeling Call Center Services Voluntary Benefits Consumer Driven Healthcare International Benefits Retirement Services The Department of Labor has imposed numerous compliance obligations on employers over the years. One of the DOL s most effective tools to compel compliance is through that agency s audit activity. A new publication describes the DOL audit initiative regarding ERISA. The DOL publication is called the Self-Compliance Tool for Part VII of ERISA: HIPAA and Other Health Care-Related Provisions. How Are Plans Selected for Audits? It is no secret that the DOL now conducts routine compliance audits. Less clearly understood is how audits are initiated. The DOL conducts random audits and also targets certain industries with a history of compliance problems. However, many audits also result from individuals complaints. In fact, for the last several years a joint DOL/IRS task force has been tracking individuals complaints to the DOL. In such situations an examiner looks at the complaint and determines if the DOL should open an investigation. The IRS has been known to conduct its own employee benefit compliance audits. A review of IRS audit concerns is beyond the scope of this article. However, the IRS will typically conduct audits that examine COBRA compliance and the employment status of participating workers (with an eye towards determining whether contingent workers or independent contractors have been improperly excluded from participation). Other IRS audit agenda items might include satisfaction of nondiscrimination requirements under testing standards set forth in the Internal Revenue Code. (Particularly with respect to Sections 105(h) and Section 125.) How Will The Audit Proceed? The investigation will begin with the DOL routinely asking the employer to provide copies of SPDs, plan documents, 5500 filings, and other such materials distributed to employees or filed with the government. In addition, the DOL will typically ask for proof of distribution of notices including those specific notices connected with the following: ERISA, COBRA, HIPAA, the Women s Health Cancer Rights Act and the Newborns and Mothers Health Protection Act. Does your plan have a record to show that distribution of required notices has been made to your workforce? Would Your Plan Survive An Audit? This question has become increasingly important because (especially since the year 2000) the DOL has steadily enlarged its audit capabilities through the recruitment of new audit agents. Moreover, the collection of fines and penalties associated with employer non-compliance has been used to fund the hiring of still more auditors, which in turn are further expected to bolster the number of audits. Willis Employee Benefits Alert is produced by Willis Legal & Research Group. The information contained in this publication is not intended to represent legal advice and has been prepared solely for educational purposes. You may wish to consult your attorney regarding issues raised in this publication. Willis publications appear on the internet at: www.focusonbenefits.com Copyright 2005
Page 2 DOL Assistance Recently the DOL s Employee Benefits Security Administration (EBSA) issued a new publication to assist employers and health plans satisfy their many compliance obligations. This new publication is written in a manner designed to simulate the topics a typical auditor would likely examine during a bona fide audit at the employer s place of business. Included in the new DOL compliance materials is a cumulative list of questions that would be considered by an auditor. The new publication covers approximately 40 different aspects of compliance responsibility. Although the information contained in the DOL publication does not cover all the specifics associated with each law governing employee benefits, it does offer employers who sponsor group health plans a better understanding of their obligations. The information presented is generally intended to provide an informal layman s explanation of legislation, statues, and interpretations based on the most recent regulations. For ease in referencing the high points of the list, Willis Legal & Research Group has included the top 10 most compelling compliance and plan administration issues: Limits on HIPAA preexisting condition exclusions/questions relating to the calculation of and credit for preexisting conditions Does your plan still exclude preexisting conditions? If so, have appropriate procedures been established to comply with HIPAA? HIPAA look-back and look-forward periods HIPAA imposes limited periods in which preexisting conditions may be identified and for which an exclusion may apply. Does your plan apply a preexisting condition exclusion greater than 12 months? Preexisting condition exclusions with reference to pregnancies, newborns, and adopted children HIPAA added special rules which impose legal protections in these areas. Does your plan apply a preexisting condition exclusion to pregnancies? Issuance of certificates of creditable coverage HIPAA s portability rule adds the obligation to distribute such certificates. Does your plan fulfill that requirement? HIPAA special enrollment right triggers Special enrollment rights enable plan-eligible individuals to enroll upon the occurrence of certain specified events without regard to open enrollment season. Does your plan allow such enrollments? HIPAA nondiscrimination rules including benefit restrictions, contribution requirements, source-of-injury restrictions, and nonconfinement clauses HIPAA created new rules to prevent discrimination based on health status. Does your plan retain language which is no longer considered acceptable?
Page 3 Multiple Employer Welfare Arrangement (MEWA) guaranteed renewability provisions Does your plan participate in a MEWA? Mental Health Parity Act lifetime dollar limitations and the calculation of constructive annual dollar limits Does your plan offer genuine parity between health benefits and mental health benefits as required by law? Newborns and Mothers Health Protection Act notices, incentives/penalties for hospital stays Does your SPD properly include advisory language about the Newborns and Mothers Health Protection Act? Women s Health and Cancer Rights Act annual notice obligation, coverage requirements, enrollment notice, and incentive provisions Does your plan distribute an annual notice advising participants about protections guaranteed by the Women s Health and Cancer Rights Act? Action Plan for Compliance Reviews Whether an employer handles all compliance duties in-house or outsources some of the tasks, the employer should periodically review the level of compliance and correct any deficiencies. A system that functions well may deteriorate over time due to changes in the law, inattention to detail, or turnover in the benefits administration department. A compliance review may consider the following items, as well as others dictated by the employer s unique situation: Written documentation, including plan documents. Agreements with insurers or any third-party administrators. Review of internal administrative systems. Review of all, or selected, personnel files for timely notices, accurate premiums, and adequate records of timely notices. Interviews of plan administrators regarding actual procedures.
Page 4 Conclusion An employer should evaluate the status of records that document its full range of compliance duties, paying particular attention to items the DOL will request. Prompt correction of any shortcomings can help to decrease exposure during a compliance audit. An added advantage will be a more systematic administration of this area of employee benefits. Plan sponsors may wish to consider the benefits of undertaking an internal audit. Such a strategy affords the plan sponsor the luxury of implementing corrective measures before being compelled to do so by a DOL auditor. As mentioned above, the DOL has published a booklet to facilitate this process. The DOL publication is called the Self-Compliance Tool for Part VII of ERISA: HIPAA and Other Health Care-Related Provisions and can be found at the following website: HTUhttp://www.dol.gov/ebsa/pdf/selfcompliancetool.pdfUTH. The Department of Labor s Employee Benefits Security Administration (EBSA) also invites plan sponsors to contact them for assistance with compliance duties. For a list of the EBSA office nearest you, please visit: HTUhttp://www.dol.gov/ebsaUTH. Willis Audits Willis Legal & Research Group is available to audit plans for compliance under the DOL protocols. Although LRG audits are not designed to evaluate individual employer processes, its audit covers all of the ERISA and tax requirements. Employee benefit plans are also subject to regular nondiscrimination testing requirements. Willis National Actuarial Practice is available to conduct such plan testing. There is generally an additional fee for the audit and/or plan testing. Employers who are interested in such services are invited to contact their local Willis representative. In addition to self audits, employers can find detailed additional information about any of the topics described above in the Willis On-Line Compliance Manual. If you do not currently have access, please contact your Willis representative to obtain a Willis On-Line Compliance Manual password.
U.S. Benefit Office Locations Page 5 Legislative & Compliance Benefits Brokerage & HR Consulting Services Rx Purchasing Coalition Data Analysis Benefits Administration Predictive Modeling Call Center Services Voluntary Benefits Consumer Driven Healthcare International Benefits Retirement Services Anchorage, AK (907) 562-2266 Eugene, OR (541) 687-2222 Memphis, TN (901) 818-3263 Plainview, NY (516) 941-0260 Atlanta, GA (404) 224-5000 Farmington, CT (860) 284-6137 Miami, FL (305) 373-8460 Portland, OR (503) 224-4155 Austin, TX (800) 861-9851 Florham Park, NJ (973) 410-1022 Milwaukee, WI (414) 271-9800 Raleigh, NC (919) 459-3000 Baltimore, MD (410) 527-1200 Ft. Worth, TX (817) 335-2115 Minneapolis, MN (763) 302-7100 Rochester, NH (603) 332-5800 Bethesda, MD (301) 530-5050 Grand Rapids, MI (616) 954-7829 Mobile, AL (251) 433-0441 Roswell, NM (505) 317-3397 Birmingham, AL (205) 871-3871 Greenville, SC (864) 232-9999 Montgomery, AL (334) 264-8282 St. Louis, MO (314) 721-8400 Boston, MA (617) 437-6900 Houston, TX (713) 625-1023 Mountain View, CA (650) 944-7000 San Diego, CA (858) 455-4888 Cary, NC (919) 459-3000 Jacksonville, FL (904) 355-4600 Naples, FL (239) 514-2542 San Francisco, CA (415) 981-0600 Charlotte, NC (704) 376-9161 Knoxville, TN (865) 588-8101 Nashville, TN (615) 872-3700 San Juan, PR (787) 756-5880 Chicago, IL (312) 621-4700 Lake Mary, FL (407) 805-3005 New Orleans, LA (504) 581-6151 Seattle, WA (206) 386-7400 Cleveland, OH (216) 861-9100 Lexington, KY (859) 223-1925 New York, NY (212) 344-8888 Tampa, FL (813) 281-2095 Columbus, OH (614) 766-8900 Long Island, NY (516) 941-0260 Orange County, CA (714) 953-9521 Washington, DC (301) 530-5050 Dallas, TX (972) 385-9800 Los Angeles, CA (213) 607-6300 Philadelphia, PA (610) 964-8700 Wilmington, DE (302) 477-9640 Denver, CO (720) 932-8137 Louisville, KY (502) 499-1891 Phoenix, AZ (602) 787-6000 Detroit, MI (248) 735-7580 Malvern, PA (610) 889-9100 Pittsburgh, PA (412) 586-1400