© Copyright 2010 Banyan Consulting, LLC., All Rights Reserved. Your Complete HR Posting Solutions: State and Federal Requirements PASBO 55 th Annual Conference.

© Copyright 2010 Banyan Consulting, LLC., All Rights Reserved.

Your Complete HR Posting Solutions: State and Federal RequirementsPASBO 55th Annual ConferenceMarch 11, 2010

What We Are Covering Today

• General HR Posting– State of PA– Federal

– Group Health Plans• State• Federal

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State of PA General HR Postings

State of PennsylvaniaRequired Posting

• Equal Employment Opportunity Poster• Equal Pay Poster • Minimum Wage and Overtime Hours Poster • Child Labor Law Poster • Schedule of Hours for Minors (To be Completed

by Employer)• Employment Provisions of the Pennsylvania

Humans Relations Act• Education Provisions of the PA Human Relations

Act and the PA Fair Educational Opportunities Act

• Right to Know Poster• Workers Compensation Insurance Poster • Unemployment Compensation Benefits Poster• Public Accommodations Provisions

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Federal General HR Postings

Whistleblower Protection Provisions

• Most labor and public safety laws and many environmental laws mandate whistleblower protections for employees who complain about violations of the law by their employers.

• Remedies can include job reinstatement and payment of back wages.

• OSHA enforces the whistleblower protections in most laws.

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Uniformed Services Employment and Reemployment Act

(USSERRA)

• The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members' reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation.

• The Veterans’ Employment and Training Service (VETS) enforces USERRA.

• You must provide to persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA.

• You can post the notice entitled Your Rights Under USERRAwhere employer notices are customarily placed, mail it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.

http://www.dol.gov/vets/programs/userra/USERRA_Federal.pdf)”7

Fair Labor Standards Act (FLSA)

• Primary wage-hour law at the federal level. Imposes minimum wage and overtime pay and also includes child labor provisions aimed at protecting minors.

• FLSA requires employers to pay workers no less than the federal minimum wage.

• Under FLSA overtime requirements, employers must pay covered employees one and one-half times their regular hourly rate for time worked in excess of 40 hours per week.

• Overtime pay is not mandated for certain categories of “exempt” employees, such as executive, professional, and administrative employees.

• The child labor provisions protect minors by limiting the types of work they can perform. Generally speaking, individuals under age 18 cannot be employed in hazardous occupations, those under age 16 cannot be employed in manufacturing or mining jobs, and those under age 14 cannot work in any nonagricultural occupation covered by the FLSA.

• Many states have their own minimum wage, overtime, and child labor laws. State mandates prevail if they are more stringent than the federal standards or more beneficial to employees.

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Age Discrimination in Employment Act (ADEA)

Employers with 20 or more employees are prohibited from discriminating against individuals 40 years of age or older on the basis of age.

The ADEA prohibits age-based discrimination in connection with hiring, advancement, termination, compensation, benefits, and other terms and conditions of employment.

Employers cannot limit, segregate, or classify applicants or employees aged 40 or older in ways that adversely affect their job opportunities. In most cases, the ADEA also prohibits forced retirement based solely on age.

If employers seek waivers from older workers in layoff situations—asking them to give up their rights to pursue employment-related claims in exchange for enhanced severance benefits or early retirement packages—employers must meet specific requirements to ensure that such waivers are knowingly and voluntarily signed by employees.

The ADEA is enforced by the Equal Employment Opportunity Commission. Many states have their own laws against age discrimination in the workplace, some of which are broader than the ADEA.

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Equal Pay Act (EPA)

• Bars employers from gender-based pay discrimination.

• Employers cannot retaliate against employees for opposing pay discrimination, pursuing EPA charges, or participating in EPA proceedings.

• Employers are prohibited from paying employees differently based on gender for performing equal work in the same establishment under the same conditions.

• Employers must maintain more than the regular wage and hour records required by the federal Fair Labor Standards Act. Additional records include job descriptions, job evaluations, and descriptions of compensation systems or practices that can explain pay differentials between employees of opposite genders.

• The Equal Employment Opportunity Commission administers and enforces EPA. Employers also can be sued by employees for alleged EPA violations.

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FMLA

• Administered by the Wage and Hour Division, the Family and Medical Leave Act (FMLA) requires employers of 50 or more employees to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the birth or adoption of a child or for the serious illness of the employee or a spouse, child or parent.

• Final rules effective on January 16, 2009 - updated to implement new military family leave entitlements enacted under the National Defense Authorization Act for FY 2008.

• Requires that the employee's group health insurance coverage be maintained under the same terms and conditions during the leave as if the employee had not taken leave.

• The Employment Standards Administration, Wage and Hour Division administers and enforces FMLA for all private, state and local government employees, and some federal employees.

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FMLA

• General Notice Requirements– Provide to each employee by including in employee handbooks or other written

guidance about benefits or leave rights.

– If you don’t have a handbook or other written guidance, you may distribute a copy of the general notice to each newly hired employee.

– You can distribute the notice electronically.

• Eligibility Notice Requirements– When an employee requests FMLA leave or you know that an employee’s leave

may be for an FMLA-qualifying reason. – You must notify the employee that they are eligible for FMLA leave within five

business days, absent extenuating circumstances.

– The notice must state if the employee is eligible for FMLA leave.

– If the employee is not eligible, must state at least one reason why.

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Qualified Medical Child Support Orders

• Group health plans offering family coverage must comply with qualified medical child support orders and National Medical Support Notices.

• QMCSOs are issued by state courts or administrative agencies usually pursuant to state domestic relations laws that require employees to provide heath care benefits for their children.

• National Medical Support Notices are issued by state agencies pursuant to the Child Support Performance and Incentive Act of 1998 that require noncustodial parents to provide health care benefits for their children.

• Upon receipt of a QMCSOs or National Medical Support Notices:

• Must enroll employees' children in the health care plans and,

• Make any required premium deductions from employees' paychecks.

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Employee Benefit Plans

Recent Health Plan Legislation

• Final rules on Cafeteria Plan – effective 1/1/2010• Mental Health Parity and Addiction Equity Act of 2008 – effective for plan years

beginning on or after 10/3/2009 or 1/1/2010 for calendar year plans• Michelle’s Law – effective for plan years beginning on or after 11/8/2009• Genetic Information Nondiscrimination Act – effective for plan years beginning on or

after 5/21/2009• Health Flexible Spending Account Distributions for Reservists (HEART Act) – effective

9/2008• Medicare Mandatory Reporting – effective 1/1/2009• Final FMLA regulations – effective 1/16/2009• Americans with Disability Act Amendments Act – effective 1/1/2009• Newborns’ and Mothers’ Health Protection Act (amendment to) – effective 1/1/2009• COBRA Subsidy – American Recovery and Reinvestment Act – effective 2/17/2009• Children’s Health Insurance Program Reauthorization Act of 2009 – effective

4/1/2009• American Recovery and Reinvestment Act – Health Insurance Portability and

Accountability Act (HITECH Act) – effective 2/17/2009• Pennsylvania Dependent Student eligibility extension

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ERISA ExemptionWord of Caution…

• Generally, public school districts are governed by state law, not ERISA, as are other governmental entities.

• More specifically, governmental plans are exempt from ERISA's participation, minimum coverage, vesting and funding standards.

• Some Plan Documents clearly state that the plan will comply with ERISA unless state law overrides ERISA. If the plan does not intend to comply with ERISA's rules, the language should not be included.

• Make sure your Documents do not commit you to comply with ERISA rules by providing ERISA language rights to employees.

• If the plan failed to comply with ERISA rules, there would be no remedy under ERISA, but there would be a contract breach and associated relief under applicable state law.

• Participants in school district plans are governmental employees. The Employee Benefits Security Administration (EBSA) has stated that, whether or not a plan is “established and maintained” by a governmental entity depends upon the extent to which a governmental entity funds and administers the plan.

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If your Plan is “self-funded” you are not subject to State Mandated Benefits.

You are not required to provide health insurance to employees. If you do, you must cover the range of benefits and services mandated by state law.

State of Pennsylvania

Mandates for Group Health Plans

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PA MandatesCommunications

Gag Clauses - Health care plans are prohibited from penalizing or restricting health care providers from discussing:

• the process to deny payment for a health care service;

• medically necessary and appropriate care with or on behalf of a beneficiary; or

• the decision of any plan to deny payment for a health care service.

Grievance Processes - Health benefit plans must establish both internal and external grievance processes.

Internal - an initial review that includes

• a review by one or more persons who did not previously deny payment for the health care service;

• the completion of the review within 30 days or receipt of the grievance; and

• a written notification to the enrollee and health care provider about the decision within five business days

The second level review must include:

• review of the first level decision by three or more persons who did not participate in any previous decision to

deny payment for the health care services;

• a written notification to the right to appear before the second level review committee;

• a review within 45 days or receipt of the request for review;

• written notification to the beneficiary and health care provider about the decision within five days of the

decision.

• the notice must include the basis and clinical rationale for the decision and the procedure for appealing the

decision.

External grievance process - an external grievance process must be conducted by an independent utilization review firm not directly related to the health benefit plan.

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PA Mandates Eligibility

Adopted Children - must be covered under the same terms and conditions as other family members.

Dependent Children - Full-time students whose studies are interrupted by service in the reserves or Pennsylvania National Guard must be extended health care benefits as a dependent of their parent until they finish school, regardless of their age.

Optional Extended Coverage Through Age 29: provided the child:

• is not married;

• has no dependents;

• is a resident of Pennsylvania or is enrolled as a full-time student at an institution of higher education;

and

• is not provided coverage under any other group or individual health insurance policy, or enrolled in or

entitled to benefits under any government program.

Newborns - must cover newborns from the moment of birth for injury or sickness including treatment of medically diagnosed:

• congenital defects;

• birth abnormalities;

• prematurity; and

• routine nursery care.

Pre-Existing Conditions - must cover any loss occurring after 12 months from any pre-existing condition not specifically excluded from coverage by terms of the plan. The plan can not include wording that would permit a defense based upon pre-existing conditions, except as provided. 19

PA MandatesRequired Coverage of Services & Supplies

Autism Spectrum Disorder - Effective July 1, 2009, plans must provide to covered individuals under 21 years of age coverage for the diagnostic assessment and treatment of autism spectrum disorders.

The mandate applies to policies and contracts for groups of more than 50.

Plans must provide a maximum benefit of $36,000 per year but must not subject any limits on the number of visits to an autism service provider for treatment of autism spectrum disorders. After Dec. 31, 2011, the Insurance Commissioner will publish in the Pennsylvania Bulletin an adjustment to the maximum benefit equal to the change in the U.S. Department of Labor Consumer Price Index for All Urban Consumers (CPI-U) in the preceding year, and the published adjusted maximum benefit will be applicable to the following calendar years to health insurance policies issued or renewed in those calendar years.

Childhood Immunizations - plans must provide coverage for childhood immunizations. Plans also must provide coverage for booster doses of all immunizing agents used in childhood immunizations.

Colorectal Cancer Screening - plans must provide coverage for colorectal cancer screening for covered individuals in accordance with American Cancer Society guidelines for colorectal cancer screening published as of Jan. 1, 2008, and consistent with approved medical standards and practices.

Diabetes-Related Services/Supplies - plans or policies, must cover diabetic-related equipment, supplies and, outpatient self-management training and education, including medical nutrition therapy.

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Emergency Services - plans must reimburse beneficiaries or providers for medically necessary services that are provided in a hospital emergency facility due to a medical emergency.

Gynecological Services - Annual gynecological examinations, including pelvic and clinical breast examinations, and routine pap smears must be covered.

Low-Protein Food Products for Inherited Amino Acid/Organic Acid Diseases - Health benefit plans must provide coverage for the cost of nutritional supplements or formulas as medically necessary for the therapeutic treatment of phenylketonuria, branched-chain ketonuria, galactosemia, and homocystinuria.

Mammography - plans that provide hospital or medical/surgical coverage must all provide coverage for mammograms. The minimum coverage required must include all costs associated with a mammogram every year for women 40 years of age or older and with any mammogram based on a physician's recommendation for women under 40 years of age.

Maternity Health Care - 48/96-hour maternity stay: must cover at least 48 hours of inpatient care after a normal vaginal delivery; and 96 hours of inpatient care following a cesarean delivery. Shorter stays are only allowed if the treating physician feels that it is appropriate for the mother and newborn. Maternity policies must cover at least one home health care visit by a licensed health care provider whose scope of practice includes postpartum care within 48 hours of leaving the hospital for early discharges. These home visits are not subject to copayment, coinsurance, or deductibles.

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Outpatient Cancer Treatment - plans must provide for reimbursements of cancer chemotherapy and hormone benefits rendered at the outpatient department of a hospital or other medically appropriate treatment setting.

Standing Referrals - Beneficiaries with a life-threatening, degenerative, or disabling condition that meets their managed care plan's established standards can request and receive either a standing referral to an appropriate specialist or designation of a specialist who will provide and coordinate their primary and specialty care.

Treatments for Specific Health Conditions – Pre MHP

Alcoholism and Drug Treatment/Rehabilitation - Group policies must cover at least:

• seven days of detoxification treatment per admission (a lifetime limit of four admissions for

detoxification is permitted);

• 30 days per year of residential care (a lifetime limit of 90 days is permitted); and

• 30 outpatient visits per year (a lifetime limit of 120 visits is permitted).

Two outpatient visits can be exchanged for one residential treatment day to increase the available residential treatment period.

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Breast Cancer Treatment - plans that provide benefits for mastectomy must also include coverage for:

• prosthetic devices;

• physical complications including lymphedemas; and

• reconstructive surgery.

• mastectomy benefits must include inpatient care following surgery, as determined by a female beneficiary's treating physician.

• coverage for a home care visit within 48 hours of surgery, if the treating physician feels it is medically necessary.

• coverage for prosthetic devices inserted during reconstructive surgery and reconstructive surgery itself may be limited to those procedures performed within six years of the date of the mastectomy.

• Beneficiaries must receive written notice that mastectomy benefits are available when they enroll in the plan, and annually thereafter. Coverage of related prosthetic devices and reconstructive surgery is subject to the same deductible and coinsurance conditions applied to other benefits.

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Mental Health Treatment

Serious mental illnesses: Annual coverage for serious mental illness must include at least 30 inpatient days and 60 outpatient days. Beneficiaries can convert inpatient day benefits to outpatient day coverage on a one-for-two basis. Maximum annual and lifetime coverage limits for severe mental illness must be the same as for other conditions. Cost-sharing arrangements, including but not limited to deductibles and copayments, cannot prohibit access to care.

Serious mental illnesses include:

• schizophrenia;

• bipolar disorder;

• obsessive-compulsive disorder;

• major depressive disorder;

• panic disorder;

• bulimia nervosa;

• schizoaffective disorder; and

• delusional disorder.

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PA MandatesAccess to Providers/Specialist

Providers - Plans must allow the following providers if the provider is licensed, the service is within the provider's scope of services, and the service is covered by the health benefit plan:

Chiropractors, Dentists, Doctors of Medicine, Osteopaths, Physical Therapists, Podiatrists, Psychologists

Nurses - plans must provide reimbursements for the services provided by the following types of nurses:

•certified registered nurse anesthetists;

•certified registered nurse practitioners;

•certified enterostomal therapy nurses;

•certified community health nurses,

•certified psychiatric mental health nurses;

•certified clinical nurse specialists; and

•certified nurse midwives.

Obstetricians/Gynecologists - plans must provide direct access to obstetrical and gynecological services without a primary care physician's prior approval.

Optometrists - plans must provide reimbursements for services rendered by optometrists. However, mandatory coverage for reimbursements does not extend to ophthalmic materials, lenses, spectacles, eyeglasses, and/or other appurtenances.

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PA MandatesMiscellaneous

Domestic Violence - plans are prohibited from discriminating against victims of domestic violence by:

• denying or restricting their coverage;

• adding a surcharge;

• canceling a policy; or

• refusing to issue or renew a policy.

Social Security Number – no health insurer can place a member’s social security number on a health insurance ID card.

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Federal Laws& Heath Plans

What Laws Apply to Employee Benefits?

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A Little ERISA History

• Title I of ERISA is administered by the Employee Benefits Security Administration (EBSA) (formerly the Pension and Welfare Benefits Administration) and imposes a wide range of fiduciary, disclosure and reporting requirements on fiduciaries of pension and welfare benefit plans and on others having dealings with these plans.

• These provisions preempt many similar state laws.

• Under Title IV, certain employers and plan administrators must fund an insurance system to protect certain kinds of retirement benefits, with premiums paid to the federal government's Pension Benefit Guaranty Corporation (PBGC) .

• EBSA also administers reporting requirements for continuation of health-care provisions, required under the Comprehensive Omnibus Budget Reconciliation Act of 1985 (COBRA) and the health care portability requirements on group plans under the Health Insurance Portability and Accountability Act (HIPAA).

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You are getting VERY Sleepy…..

More ERISA History

• ERISA is divided among the U.S. Department of Labor, the Internal Revenue Service of the Department of the Treasury (IRS), and the Pension Benefit Guaranty Corporation (PBGC).

• Title I, which contains rules for reporting and disclosure, vesting, participation, funding, fiduciary conduct, and civil enforcement, is administered by the U.S. Department of Labor.

• Title II of ERISA, which amended the Internal Revenue Code to parallel many of the Title I rules, is

administered by the IRS.

• Title III is concerned with jurisdictional matters and with coordination of enforcement and regulatory activities by the U.S. Department of Labor and the IRS.

• Title IV covers the insurance of defined benefit pension plans and is administered by the PBGC.

• Prior to a 1978 reorganization, there was overlapping responsibility for administration of the parallel provisions of Title I of ERISA and the tax code by the U.S. Department of Labor and the IRS, respectively.

• As a result of this reorganization, the U.S. Department of Labor has primary responsibility for reporting, disclosure and fiduciary requirements; and the IRS has primary responsibility for participation, vesting and funding issues.

• The U.S. Department of Labor may intervene in any matters that materially affect the rights of participants, regardless of primary responsibility.

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What Does Apply for You?

• HIPAA health insurance reform requirements of Part A of title XXVII of the Public Health Service (PHS) Act apply to group health plans.

• The Newborns' and Mothers' Health Protection Act of 1996,

• The Mental Health Parity Act of 1996 (MHPA),

• The Women's Health and Cancer Rights Act of 1998 (WHCRA),

• The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA),

• The Genetic Information Nondiscrimination Act of 2008 (GINA),

• Michelle's Law (2008) and;

• The Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA).

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There are ALWAYS exceptions to the rules

What Plans are Exempt from ERISA?

• Under ERISA § 4(b) and other sections, the following plans are generally exempt:

• plans sponsored by federal, state or local governments

• plans sponsored by churches

• workers’ compensation, unemployment compensation or disability insurance laws

• plans maintained outside the U.S. primarily for nonresident aliens

• unfunded executive compensation plans that provide additional benefits to executives and other high-paid employees

IRC requirements continue to apply and must be

observed in order to

preserve tax-exempt

treatment, where

available, for plan

participants.

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Subject to Section 125?

• Two entirely separate pieces of legislation, but closely related.

• Schools, government and churches are “special” and do not have to follow ERISA rules.

• But, you are required to follow certain sections of the Internal Revenue Code, including Section 125.

• ERISA does not apply (including Title 1 – Reporting and Disclosure) to health and welfare benefits that schools offer, but if you offer pre-tax premiums towards coverage costs and/or flexible spending accounts – you are subject to Section 125.

• Which means you should have a plan document, along with all the other requirements of the Section 125 from our friends at the IRS. If you don’t comply with Section 125 rules, you could lose your tax status.

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Confused yet?

Subject to Section 125?

Cafeteria plans, if established, maintained, and administered in accordance with section 125 of the Internal Revenue Code offer tax-favored treatment.

If cafeteria plans do not comply with section 125, you lose tax-favored treatment and will be subject to penalties.

According to the Internal Revenue Code (Code) and the related Internal Revenue Service (IRS) guidelines,

• all cafeteria plans must meet certain requirements found in Code Section 125, which includes a requirement that the plan be in writing (a formal plan document).

• If the Code requirements aren't met, the district will not have a tax-qualified benefit plan, and employees will be taxed on their deferred salary used to pay health care premiums.

• A premium-only plan (POP), also known as a premium conversion plan, is a form of a cafeteria plan under Code Section 125.

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PA School Specific ProvisionsAct 43/110

How do you handle retired spouses when the retiree reaches age 65?

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Special Rules for Nonfederal Government Employers

Self Funded Plans

Self Funded PlansHIPAA

• Newborn’s and Mothers’ Health Protection Act

• Mental Health Parity Act of 1996

• Women’s Health and Cancer Rights Act of 1998

• Genetic Information Nondiscrimination Act of 2008 (GINA)

• The Mental Health Parity and Addiction Act of 2008

• Michelle’s Law

• Children’s Health Insurance Program Reauthorization Act of 2009

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Title XXVII was added to the PHS Act by Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and has been amended by the following:

Self Funded Plans

With the Exception of GINA and certification and disclosure of credible coverage – you can elect to not comply with:

•Newborn’s and Mothers’ Health Protection Act

•Mental Health Parity Act of 1996

•Women’s Health and Cancer Rights Act of 1998

•The Mental Health Parity and Addiction Act of 2008

•Michelle’s Law

•Children’s Health Insurance Program Reauthorization Act of 2009

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Non-Federal Government employers that have a self-funded plan can “Opt-Out” of Compliance Requirements of Title XXXVII of the Public Health Service (PHS)Act

Self Funded Plans Opt-Out Required Notice

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School District A Group Health Plan is not provided through insurance. School District A elects under authority of section 2721(b)(2) of the Public Health Service (PHS) Act, and 45 CFR 146.180 of Federal regulations, to exempt School District A Group Health Plan from the following requirements of title XXVII of the PHS Act:

1. Limitations on preexisting condition exclusion periods.

2. Special enrollment periods.

3. Prohibitions against discriminating against individual participants and beneficiaries

based on health status.

4. Standards relating to benefits for mothers and newborns.

5. Parity in the application of certain limits to mental health benefits.

6. Required coverage for reconstructive surgery following mastectomies.

7. Coverage of dependent students on medically necessary leave of absence.

This election has been made in conformity with all rules of the plan sponsor, including any public hearing, if required. I certify that the undersigned is authorized to submit this election on behalf of (name of plan). A copy of the notice to plan enrollees is enclosed. If CMS has any questions regarding this election, please contact (name) at (phone number).

Self Funded Plans Opt OutRequired Notice to Enrollees

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Under a Federal law known as the Health Insurance Portability and Accountability Act of 19(HIPAA), Public Law 104-191, as amended, group health plans must generally comply with the requirements listed below. However, the law also permits State and local governmental employers that sponsor health plans to elect to exempt a plan from these requirements for any part of the plan that is "self-funded" by the employer, rather than provided through a health insurance policy. School A has elected to exempt (name of plan) from (all) (or specify which ones) of the following requirements:

1.Limitations on preexisting condition exclusion periods. A preexisting condition exclusion period generally may not exceed 12 months, and generally must be reduced by prior health coverage an individual has had. Also, a plan may not impose any preexisting condition exclusion relating to pregnancy as a preexisting condition, nor, under certain conditions, with respect to newborns or children adopted or placed for adoption.

2.Special enrollment periods. Group health plans are required to provide special enrollment periods for individuals who do not enroll in the plan because they have other coverage, but subsequently lose that coverage. Also, if a plan provides dependent coverage, the plan must provide a special enrollment period for new dependents (and the employee if not already enrolled) within 30 days after a marriage, birth, adoption or placement for adoption. A 60-day special enrollment period applies to eligible individuals who lose eligibility for Medicaid coverage or coverage under a State child health plan, or become eligible under Medicaid or a State child health plan for group health plan premium assistance.

Self Funded Plans Opt OutRequired Notice to Enrollees, Continued

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3. Prohibitions against discriminating against individual participants and beneficiaries based on health status. A group health plan may not discriminate in enrollment rules or in the amount of premiums or contributions it requires an individual to pay based on certain health status-related factors: health status, medical condition (physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insurability and disability.

4. Standards relating to benefits for mothers and newborns. Group health plans offering health coverage for hospital stays in connection with the birth of a child generally may not restrict benefits for the stay to less than 48 hours for a vaginal delivery, and 96 hours for a cesarean section.

5. Parity in the application of certain limits to mental health benefits. Group health plans (of employers that employ more than 50 employees) that provide both medical and surgical benefits and mental health or substance use disorder benefits must ensure that financial requirements and treatment limitations applicable to mental health or substance use d benefits are no more restrictive than the predominant financial requirements and treatment limitations applicable to substantially all medical and surgical benefits covered by the plan.

Self Funded Plans Opt OutRequired Notice to Enrollees, Continued

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6. Required coverage for reconstructive surgery following mastectomies. Group health plans that provide medical and surgical benefits for a mastectomy must provide certain benefits in connection with breast reconstruction as well as certain other related benefits.

7. Coverage of dependent students on medically necessary leave of absence. Group health plans are required to continue coverage for up to one year for a dependent child, covered as a dependent under the plan based on student status, who takes a medically necessary leave of absence from a postsecondary educational institution.

The exemption from these Federal requirements will be in effect for the (plan year) (period of plan coverage) beginning (specify date) and ending (specify date). The election may be renewed for subsequent plan years.

HIPAA also requires the Plan to provide covered employees and dependents with a "certificate of creditable coverage" when they cease to be covered under the Plan. There is no exemption from this requirement. The certificate provides evidence that you were covered under this Plan, because if you can establish your prior coverage, you may be entitled to certain rights to reduce or eliminate a preexisting condition exclusion if you join another employer’s health plan, or if you wish to purchase an individual health insurance policy.

Health Plan Reporting &

Notice Requirements

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Calendar for Health Plan ReportingHHS Requirements

What? Notice of Privacy Practices for Protected Health Information – HIPAA Privacy

Description Notice to participants describing their rights, the plan’s legal duties with respect to protected health information and the plan’s uses and disclosure of protected health information.

Which Plans? Group Health Plans

Who Sends? Plan Administrator

Who Gets? Plan Participants

When? At enrollment and within 60 days of a material revision of the notice. Every three years plans must notify individuals covered by the plan that a Notice of Privacy Practices is available and how to obtain it.

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What? Breach Notification for Unsecured Protected Health Information (HITECH Act provision of Stimulus Act)

Description Notice to participants with respect to the unauthorized acquisition, access, use or disclosure of unsecured protected health information. Notice must include: description of what happened; description of information involved; steps individuals should take to “protect themselves from potential harm resulting from the breach;” brief description of investigation and mitigation steps; and contact information.

Which Plans?

Group health plans, other covered entities under HIPAA and their business associates

Where to Send?

Contemporaneous notice to HHS and prominent medial outlets for breaches involving more than 500 individuals. Annual notice to HHS if breach involves less than 500 individuals.

Who Sends?

Plan Administrator

Who Gets? Plan Participants

When? Within 60 days of discovery of the breach, effective for breaches that occur on or after September 23, 2009

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What? Notice of Creditable Coverage

Description Written notice stating whether a group health plan’s RX coverage is, on average, at least as good as standard prescription drug coverage under Medicare Part D. You can get the forms from the CMS at www.cms.hhs.gov/crediblecoverage/.

Which Plans?

Group health plans that offer RX coverage RX to Medicare Part D-eligible folks

Who Sends?

Plan Administrator

Who Gets? Plan Participants and any beneficiaries eligible for Medicare Part D

When? 1. Prior to Medicare’s Annual Open Enrollment (November 15th through December 31st ) 2. Prior to an individuals initial enrollment period for Part D

Save yourself the agony of 1 and 2 and send annually3. Prior to the effective date of coverage for any Part D-eligible who joins the plan4. When the plan no longer offers drug coverage or if the coverage is no longer credible5. Upon request of an individual6. Prior to means with the past 12 months

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What? Creditable Coverage Disclosure Notice to CMS

Description Written disclosure to CMS stating whether a group health plan RX coverage is, on average, at least as good as standard RX coverage under Medicare Part D notice

Which Plans?

Group health plans that offer RX coverage RX to Medicare Part D-eligible folks

Who Sends?

Plan Administrator

Who Gets? CMS through online form

When? 1. 60 days after the beginning of the plan year – if your plan “renews” in July, the Notice should be provided by August

2. Within 30 days of the termination of a plans RX coverage3. Within 30 days after a change in the credible status of a plan

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Calendar for Health Plan ReportingDOL Requirements

What? Women’s Health & Cancer Rights Act (WHCRA)

Description Listing of benefits under the WHCRA and any deductible and coinsurance limits that may apply.

Which Plans?

Group health plans that include mastectomy benefits

Who Sends?

Plan Administrator

Who Gets? Plan Participants and also beneficiaries

When? Upon enrollment in the plan and annually thereafter. The DOL has sample language for both notices.

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Calendar for Health Plan Reporting DOL/IRS Combined Requirements

What? Notice of Continuation of Health Coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA)

Description 1. Notice to participants and spouses upon initial enrollment of their right to continue coverage

2. Notice to a qualified beneficiary after a qualifying event3. Notice to COBRA participants of a change in premium

Which Plans?

Group health plans

Who Sends?

Plan Administrator

Who Gets? Plan Participants and other Qualified Beneficiaries

When? 1. General Notice or Initial Notice – within 90 days of when coverage begins – participants and spouses

2. Election Notice or Notice of Qualifying Event to specific qualified beneficiary - within 14 days after the plan administrator is notified of a qualifying event DOL regs allow up to 44 days after the QE or loss of coverage to provide notice, if the employer and plan administrator are the same

3. Prior to its effective date for premium change


What? Notice of Unavailability of Continuation Coverage under COBRA

Description Notice to qualified beneficiaries that have sent a qualifying event notice to the plan administrator of the reason of the reasons why they are not entitled to COBRA coverage

Which Plans?

Group health plans

Who Sends?

Plan Administrator

Who Gets? Qualified Beneficiaries

When? Within the same time frame that the plan administrator would have to prove an election notice had the person been eligible for COBRA (generally 14 days after receipt of a notice of a qualifying event, or when the employer and plan administrator are the same, 44 days after notice of a qualifying)

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What? Notice of Availability of COBRA Subsidy

Description Notice to certain qualified beneficiaries of the availability of a federal subsidy for COBRA continuation that pays 65% of the COBRA premiums for coverage based on qualifying events that occurred between September 1, 2008 and March 31, 2010.

Which Plans?

Group health plans

Who Sends?

Plan Administrator


When? The subsidy language is included in the COBRA general notice. In addition, notification will be required regarding the recent extension. Official guidelines and model language have not been released.

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What? Notice of Termination of Continuation Coverage

Description Notice to qualified beneficiaries that their COBRA coverage is terminating early (i.e., before the end of the maximum coverage period).

Which Plans?

Group health plans

Who Sends?

Plan Administrator


When? As soon as practicable following the administrator’s determination that continuation coverage shall terminate early. Can be combined with a HIPAA certificate of creditable coverage.

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What? Notice of Insufficient Payment of COBRA Premium

Description Notice to qualified beneficiary that payment for COBRA continuation coverage was less (but not “significantly less”) than the correct amount.

Which Plans?

Group health plans

Who Sends?

Plan Administrator


When? Must provide reasonable period of time to pay the deficiency before terminating COBRA. A 30-day grace period is considered reasonable.

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What? HIPAA Certificate of Creditable Coverage

Description Notice to former participants and covered dependents detailing the length of time during which they were covered under the plan

Which Plans?

Group health plans

Who Sends?

Plan Administrator

Who Gets? Former participants and covered dependents

When? 1. Upon loss of health coverage and no later than deadline for giving the COBRA election notice.

2. When COBRA ends, with a reasonable time after the plan learns that COBRA has ceased.

3. Certificate must be given upon request if request is made within 24 months after coverage ends. A model certificate is available.

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What? Notice of Special Enrollment Rights

Description Notice to participants of HIPAA special enrollment rights

Which Plans?

Group health plans

Who Sends?

Plan Administrator

Who Gets? Participants

When? On or before participant is offered opportunity to enroll in group health plan. DOL model language is available.

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What? General Notice of Preexisting Condition Exclusion

Description Written notice of existence and terms of any preexisting condition exclusion and the rights of individuals to demonstrate creditable coverage, including rights of individuals to request a certificate of creditable coverage from a prior health plan or health insurer. Also a statement that the current plan will assist in obtaining a certificate from any prior plan or insurer, if necessary.

Which Plans?

Group health plans

Who Sends?

Plan Administrator or Insurance Company

Who Gets? Participants and covered dependents where plan contains a preexisting condition exclusion

When? With enrollment materials or, if enrollment materials are not distributed, by the earliest date following request for enrollment

There is also a requirement of Individual Notice of Period of Pre-Ex Exclusion

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What? Notice of Coverage Relating to Hospital Length of Stay in Connection with Childbirth

Description Notice to participants in SPD that describes any requirements under both federal and state law regarding the minimum length of a hospital stay in connection with childbirth

Which Plans?

Group health plans that provide maternity and newborn coverage

Who Sends?


Who Gets? Participants and covered dependents where plan contains a preexisting condition exclusion

When? Within SPD time frame

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What? Wellness Program Disclosure

Description Notice to participants that states if it is unreasonably difficult due to medical condition for you to achieve the standards for the reward under this program, or if it is medically inadvisable for you to attempt to achieve the standards for the reward under this program, call (somebody) and we will work with you to develop another way to qualify for the reward

Which Plans?

Group health plans that include wellness programs requiring employees satisfy a standard related to a health factor

Who Sends?

Plan Administrator

Who Gets? Participants and covered dependents

When? In all plan material that describes the terms of the wellness plan

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What? Michelle's Law

Description Requires extended coverage for post-secondary education students on medical leave

Which Plans?

Group health plans

Who Sends?


Who Gets? Participants, any notice regarding student status certification must describe rights to continued coverage during a medically necessary leave of absence

When? Effective for plan years beginning on or after October 9, 2009 and to medical leaves beginning during that year, whenever notice of student status certification is provided

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What? Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA)

Description Requires plans to permit an employee or dependent that is eligible for but not enrolled in the plan to enroll when the employee or dependent is covered under Medicaid or CHIP and loses that coverage as a result of loss of eligibility or when the employee or dependent becomes eligible for Medicaid or CHIP assistance with respect to coverage under the group health plan

Which Plans?

Group health plans

Who Sends?


Who Gets? Participants, any notice regarding student status certification must describe rights to continued coverage during a medically necessary leave of absence

When? Required to permit Participants and their dependents to enroll in the plan during a new “special enrollment” opportunity upon eligibility for Medicaid within 60 days of being determined eligible for premium assistance

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What? Children’s Health Insurance Program Reauthorization Act of 2009 (CHIPRA)

Description Notification to employees of the opportunity available for group health plan premium assistance under state Medicaid or CHIP in the state in which the employee resides. The model notice is available at: www.dol.gov/ebsa/chipmodelnotice.doc.

Which Plans?

Group health plans

Who Sends?

Plan Administrator

Who Gets? All employees

When? Annually in conjunction with open enrollment

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Methods for Delivering Notices

Methods of Delivering Notices

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• Always Written - Never Verbal

• Addressed by Name to Employee "& Spouse/Family"

• Always First Class Mail to Last Known Address

• You are permitted to deliver required notices to plan participants:

• by hand

• by U.S. mail

• posting in a common area [limited to specific notices] ;or

• electronically

• Federal courts have confirmed their strong preference for delivery of a notice to a plan beneficiary by U.S. mail.

• ERISA requires that notices be provided to all plan participants, and on occasion, covered employees who receive hand delivered notices fail to give them to their spouse. Courts and regulators do, allow a parent to receive a notice on behalf of a dependent.

• Mailing to the last known address appears to satisfy the courts.

Methods of Delivering NoticesElectronic

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• Limit the electronic delivery to two groups:

• Plan participants who work with and have direct access to the employer's electronic information system, either on the job site, at home, or through portable devices.

• Plan participants and beneficiaries who have formally consented to receive such documents electronically outside the workplace.

• “Acceptable" involves ready access to a computer in the workplace, or use of a CD or other recording media, or a password protected website.

• Ensure actual receipt by return-receipt or undeliverable electronic mail features, or conducting periodic surveys.

• Notify the participants and beneficiaries of the significance of the document being transmitted electronically.

• The electronic system must meet certain security standards.

Methods of Delivering Notices

• Courts and regulators do not accept your word that a notice was provided

• You should:

• Set up a written notice delivery policy • Train those who send out the notices about the policy.

• Keep records for each mailed notice

• Don’t have to keep a copy of the actual document, but should:

• keep a record to the addressee[s]' information• the date and method of delivery• identify the specific notice or document sent.

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© Copyright 2010 Banyan Consulting, LLC., All Rights Reserved. Your Complete HR Posting Solutions: State and Federal Requirements PASBO 55 th Annual Conference.

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