Get Your Notices Ready...

 September 20 2019     Diane Cross

As many employers prepare for open enrollment, distributing required annual notices can be a tedious task on the to-do list. Federal regulations such as ERISA, HIPAA, and the Affordable Care Act (ACA) require employers to distribute various notices to employees, at specific times. Open enrollment is one of those times in which several notices are required to be distributed, as summarized below.

Notices required during open enrollment include:

Summary of Benefits and Coverage (SBC). Per the ACA, health plans and insurance issuers must provide an SBC to participants and beneficiaries that accurately describes the benefits and coverage provided by the plan. The SBC template and related materials are available from the Department of Labor (DOL).

Timing: At enrollment, during open enrollment, within 90 days of a special enrollment, and within 7 days of a request

CHIP Premium Assistance Notice. Employers (with group health plans that cover individuals in states that provide for premium assistance through Medicaid or CHIP) must provide a notice to employees regarding available State premium assistance programs that can help pay for coverage and how they can apply for it. The DOL has provided a model notice.

Timing: Annually – generally provided during open enrollment

Grandfathered Status. Any plan that believes it is grandfathered must include a statement in all plan materials provided to a participant or beneficiary that the plan believes it is grandfathered. The notice must clearly state that the plan is a grandfathered plan and must contain the plan’s contact information for questions and complaints. Model language is available from the DOL.

Timing: Annually – this notice should be included in all open enrollment materials and other plan materials distributed to participants as long as the plan remains grandfathered

Notice of Patient Protections. Under the ACA, plans that require designation of a primary care provider must issue a notice to all participants of their rights under the plan regarding designating providers. Also, all plans previously requiring prior authorization to see an OBGyn must provide participants a notice that they no longer need prior authorization. The DOL provides model language.

Timing: These notices (if applicable) must be provided whenever the plan sponsor provides a participant with an SPD or other similar description of benefits

Women’s Health and Cancer Rights Act. Notice advising all participants and beneficiaries of their rights to breast reconstruction post-mastectomy (for plans that provide coverage for medical and surgical benefits related to a mastectomy). Model language for this disclosure is available on the DOL’s website.

Timing: Upon enrollment and annually each year afterwards

Other Notice Requirements
The following notices should also be considered and included with the plan’s open enrollment materials, as applicable:

Medicare Part D Creditable Coverage Notice. Group health plans must provide notice to individuals covered by or eligible for the group health plan who are eligible for Medicare explaining whether the drug coverage is creditable (actuarially equivalent to coverage available under the standard Medicare Part D). Centers for Medicare and Medicaid Service provides model notices.

Timing: At least once per year before October 15th, prior to an individual’s initial Medicare enrollment period (per CMS, this requirement is met if the notice is being distributed to all participants annually), upon enrollment of a Medicare eligible individual, when there is a change in the creditable status of the drug coverage, and when an individual requests the notice

EEOC Notice for Wellness Programs. The Americans with Disabilities Act (ADA) requires employers sponsoring wellness programs that collect employee health information to provide a notice advising participants of the information that will be collected, how it will be used, who will receive it, and what will be done to keep it confidential. The EEOC provides a sample notice.

Timing: In advance of testing and with enough time for participants to reasonably decide whether or not to participate

HIPAA Privacy Notice. Health plans or insurers must distribute a notice to participants of their privacy rights.

Timing: Upon an individual’s initial enrollment in the plan, within 60 days of a material change, and upon request. Also, participants must be made aware of the availability of and how to obtain the Notice once every three years.

Employers should review their open enrollment materials to ensure compliance with annual notice requirements. The DOL provides guidance on acceptable distribution, requiring that notices be provided in a manner reasonably calculated to ensure actual receipt (such methods include hand-delivery, U.S. mail, and via electronic media in certain circumstances). For questions regarding notice requirements, distribution methods, and available resources – please contact your HORAN representative.