Employee Benefit Plan Notices

Employee benefit plans are required to distribute many different notices, at different times, to various recipients. Those notices are required by various laws. We have previously written about the notices required by the Affordable Care Act (ACA), but there is another layer of notices required by the Employee Retirement Income Security Act (ERISA). ERISA applies to most private-sector employee benefit plans and imposes a number of obligations on plan sponsors, including a litany of required notices to plan participants. Below is a list of ERISA notices plan sponsors should distribute when appropriate.

  • Summary Plan Description (SPD)*—summary of the plan’s benefits, exclusions and other material provisions as well as identification and contact information for the plan administrator. An SPD should be written so that the average plan participant can understand the information. Plan participants should receive a copy of the SPD within 90 days of plan eligibility (or 120 days from the date the plan becomes subject to ERISA). Updates must be furnished every 5 years if the plan has been amended (otherwise every 10 years). Most certificates provided by the carriers for fully insured plans do not satisfy all of the SPD content requirements, so many employers choose to use a “wrap” document to ensure compliance.
  • Summary of Material Modifications (SMM)*—description of material changes to the plan or SPD-required information. Distribution of an updated SPD will satisfy this requirement. SMMs are due no later than 210 days after the end of plan year in which the change is adopted (unless the change is considered a material reduction—see below).
    • Summary of Material Reduction in Covered Services or Benefits should be provided within 60 days of adoption of change. Qualifying changes include: the elimination or reduction of benefits payable under the plan, an increase in cost-sharing (deductibles, co-insurance, co-payments, etc.), a change in a provider network service area or the imposition of new conditions on receipt of benefits (such as additional preauthorization requirements).
  • Summary Annual Report[1]—narrative summary of Form 5500 should be provided to plan participants within 9 months after the end of the plan year or 2 months after the end of the Form 5500’s extended filing deadline.
  • Plan documents—include the latest updated SPD, latest Form 5500*, trust agreement, and other instruments under which the plan is established or operated. Must be provided to participants upon written request and copies must be available for examination.
  • Notice of Benefit Determination (Explanation of Benefits)—information regarding benefit claim determinations. Requirements vary depending on the type of plan and type of claim involved. Adverse benefit determination notices must include a copy of the plan’s appeals rights and procedures.
  • COBRA Notices—additional information and model notices are available from the DOL.
    • Initial COBRA Notice (General COBRA Notice)—notice of rights to continue group health coverage upon termination due to a qualifying event. Notice should generally be provided to covered employees and covered spouses within 90 days of the date coverage commences. Model Notice
    • COBRA Election Notice—notice to individuals who have experienced a qualifying event and are eligible to continue coverage. (Recent updates to the DOL’s model notice include information about other coverage options, such as the healthcare.gov Marketplace.) Notice must be provided within 44 days after the qualifying event if the employer and plan administrator are the same. Model Notice
    • Notice of Unavailability of COBRA—notice should be provided within 14 days if an individual notifies the plan administrator of a qualifying event, but that individual is not eligible for COBRA continuation coverage.
    • Notice of Insufficient COBRA Premium payment—notice to qualified beneficiary if payment received is less than full amount due prior to cancelling coverage for non-payment.
    • Notice of Early Termination of COBRA—qualified beneficiary must be notified if COBRA continuation coverage ends prior to end of the maximum period (e.g., for non-payment of premiums).
  • Medical Child Support Order Notice (MCSO)—notice of plan’s receipt and qualification determination of a medical child support order should be provided to participants, child(ren) named in the order and any representatives.
  • Notice of Special Enrollment Rights—description of right to special enrollment in the plan upon the occurrence of certain events (loss of other coverage, marriage, birth/adoption of a child). Should be provided to employees before they are offered enrollment in the health plan. Model notice
  • Employer CHIPRA Notice—notice to employees of possible state-provided premium assistance programs. Please note that this notice is required to be issued by employer rather than health plans. Model notice
  • Wellness Program Disclosure—informs participants of availability of reasonable alternative standard for plans conditioning rewards (including premium differentials) on the satisfaction of a health contingent standard. Model language
    • For plan years beginning on or after January 1, 2017, the EEOC also requires a separate notice for participants in an employer wellness program that collects medical information. Sample Notice.
  • Newborns and Mothers Health Protection Act—statement describing requirements relating to the length of hospital stays in connection with childbirth. Notice should be included in SPD. Model language
  • Women’s Health and Cancer Rights Act Notice—describes mandated coverage for mastectomy-related reconstructive surgery and treatment of complications. Notice should be provided upon enrollment in the plan and annually thereafter.  Model enrollment and annual notices
  • HIPAA Privacy
    • Notice of Privacy Practices—description of plan’s uses and disclosures of patient’s protected health information, as well as participant rights with respect to that information. Notice should be provided at enrollment or upon request and at least every 3 years, the plan must notify individuals that the Notice of Privacy Practices is available and how individuals can obtain a copy. Model Notices
    • Breach Notification—following a discovery of a breach, a covered entity is required to notify each individual whose unsecured protected health information (PHI) has been accessed, acquired, used, or disclosed as a result of such breach. Notice must also be provided to HHS and, if the breach involves more than 500 residents of any one state or jurisdiction, the media.
  • Medicare Part D Creditable Coverage Disclosures—entities providing prescription drug coverage must notify Medicare Part D eligible individuals whether the plan’s coverage is “creditable” (actuarial value of coverage equals or exceeds the actuarial value of standard prescription drug coverage). Must be provided annually prior to October 15th or when coverage changes. Plans can determine the status of their prescription drug coverage (creditable or non-creditable) by contacting their carrier or TPA. Model Notice for Plans with Creditable Coverage; Model Notice for Plans with Non-Creditable Coverage
    • Employers are also required to report to CMS, disclosing the creditable coverage status of offered plan options within 60 days after the end of each plan year or when changes are made.   Disclosure to CMS Form  
  • Michelle’s Law Enrollment Notice—description of continuation of coverage rules for students on medical leave of absence. Although Michelle’s Law is still in force, its applicability has been limited by the ACA. Currently it only applies to plans conditioning eligibility on full-time student status for individuals age 26 and over.

[1]Note that some notice requirements are specific to ERISA, while others are contained or duplicated under other federal laws and may apply to non-ERISA plans. Please contact your Consultant for additional information on compliance for plans that are not subject to ERISA. Namely, plans maintained by governmental entities and churches.

 

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About Dawn Kramer

Dawn is an attorney and Certified Employee Benefit Specialist (CEBS) in J.W. Terrill’s Consulting Services department. She advises clients on legal and regulatory issues affecting their employee benefit plans.

View all posts by Dawn Kramer

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