Employer Notification and Disclosure Carolyn L. Goodwin, CBC, SGS Principal, Goodwin Benefits Group LLC Karen Kirkpatrick Senior Compliance Advisor Infinisource, Inc. © 2011, National Association of Health Underwriters

Attendee Goals KEEP brokers and their clients informed KEEP the government out of your business KEEP your business out of court 2

Review of Each Notice Purpose (PUR) Regulating agency (AGE) Who must provide (WHO) Delivery requirements (DEL) Timing rules (TIM) Penalty scheme (PEN) 3

FMLA Notices 4

FMLA Family & Medical Leave Act PUR: To inform employees of their general FMLA rights AGE: Wage and Hour Division WHO: Employers with 50 or more employees DEL: General Notice (WHD Publication 1420) must be displayed in a conspicuous place, even in locations without eligible employees TIM: Effective immediately PEN: WHD discretion 5

FMLA Cont. PUR: To inform employees of whether they are eligible for FMLA leave AGE: Wage and Hour Division WHO: Employers with 50 or more employees DEL: Eligibility/Rights and Responsibilities Notice (WH-381) must be delivered in writing TIM: Within five business days of acquiring knowledge of FMLA reason PEN: Full range of FMLA penalties via a WHD complaint or private action 6

FMLA Cont. PUR: To inform employees of whether they are eligible for FMLA leave AGE: Wage and Hour Divison WHO: Employers with 50 or more employees DEL: Designation Notice (WH-382) must be delivered in writing TIM: Within five business days of acquiring knowledge of FMLA reason PEN: Full range of FMLA penalties via a WHD complaint or private action 7

Benefits Related Notice and Delivery Requirements 8

Benefits Related HIPAA – CHIPRA COBRA Medicare WHCRA ACA required notices – Grandfathered plan notice – Patient protection notice – Summary of Benefits and Coverage ERISA Notices – SPD – SMM – SAR 9

HIPAA Notices 10

Notice of Privacy Practices (NPP) Breach Notification Special Enrollment Rights Notice Individual Notice of Preexisting Condition Certificates of Creditable Coverage Privacy, Security, HITECH HIPAA Portability HIPAA Portability Notice of Availability of NPP General Notice of Preexisting Condition 11

General Notice of Preexisting Condition PUR: To notify participants of any PCEs AGE: DOL Employee Benefit Security Administration (EBSA) WHO: Covered employees DEL: Provided in an manner “reasonably calculated to ensure receipt TIM: Earliest date after enrollment PEN: Up to $100 per day and cannot enforce PCE until notice is sent 12

Individual Notice of Preexisting Condition PUR: To notify participant of PCE period that will apply AGE: EBSA WHO: Participants DEL: Provided in a manner “reasonably calculated to ensure receipt” TIM: Earliest date after reasonable and prompt action (e.g., five days) PEN: Up to $100 per day and cannot enforce PCE until notice is sent 13

Special Enrollment Rights Notice PUR: To notify eligible employees of special enrollment rights (e.g., addition of dependent, loss of other coverage, CHIP) AGE: EBSA WHO: Eligible employees DEL: Provided in a manner “reasonably calculated to ensure receipt” TIM: At or before initial enrollment opportunity PEN: Up to $100 per day and retroactive enrollment 14

Certificates of Creditable Coverage PUR: To provide participants proof of prior coverage so they can eliminate/reduce PCE period AGE: EBSA WHO: Participants DEL: Via first class mail TIM: Automatically upon loss of coverage (LOC) or upon request within 24 months of LOC PEN: Up to $100 per day and retroactive enrollment 15

Notice of Privacy Practice NPP PUR: To notify participants of their HIPAA Privacy rights AGE: HHS Office for Civil Rights (OCR) WHO: Enrolled employees DEL: In writing and on benefits website (if applicable) TIM: At enrollment, upon request, within 60 days of material change to notice PEN: Unspecified 16

Notice of Availability of NPP Notice of Privacy Practices PUR: To remind participants where they can obtain the NPP AGE: OCR WHO: Enrolled employees DEL: In writing TIM: Every three years PEN: Unspecified 17

) Breach Notifications (as required by HITECH Act) PUR: TO notify participants of a breach of unsecured protected health information (PHI) AGE: OCR WHO: Participants DEL: In writing TIM: Within 60 days of discovery of breach PEN: Ranges from $100 to $1.5 million Up to four notices are required: Business Associates to Covered Entity Covered Entity to participants Covered Entity to HHS Covered Entity to prominent media outlets 18

COBRA Notices 19

General Notice General Notice Qualifying Event Election Notice Notice of Unavailability Open Enrollment Plan Change Early Termination Conversion Notice Insignificant Premium Underpayment 20

General Notice PUR: To notify participants of their basic COBRA rights and responsibilities AGE: EBSA WHO: Participants DEL: First class mail, Single Notice Rule applies TIM: Within 90 days of enrollment PEN: Up to $110 per day 21

Qualifying Event Election Notice PUR: To inform Qualified Beneficiaries (QB) of continuation coverage rights AGE: EBSA WHO: QBs who experience one of seven Qualifying Events DEL: First class mail TIM: Within 44 days of Qualifying Event or LOC PEN: Up to $100 per day 22

Notice of Unavailability PUR: To notify individuals why requested COBRA coverage is unavailable AGE: EBSA WHO: QB who notifies employer of divorce/legal separation, dependent ceasing eligibility, secondary events, Social Security disability award DEL: First class mail TIM: Within 14 days of receiving request PEN: UP to $110 per day 23

Open Enrollment Notice PUR: To provide same rights that similarly situated active employees have AGE: EBSA WHO: QBs DEL: First class mail TIM: Same timing as similarly situated active employees PEN: Full measure of COBRA penalties, including $110 daily penalty 24

Notice of Plan Changes To be discussed under SMM requirements 25

Notice of Early Termination PUR: To explain why COBRA is terminating before maximum coverage period ends AGE: EBSA WHO: QBs who experience a terminating event DEL: First class mail TIM: As soon as practicable PEN: Up to $110 per day 26

Conversion Notice PUR: To notify of any conversion rights at the end of the maximum coverage period AGE: EBSA, state insurance departments WHO: QBs who exhaust COBRA coverage DEL: First class mail TIM: Within 180 days of COBRA expiration PEN: Up to $110 per day 27

Insignificant Premium Underpayment PUR: To provide additional 30 days to make up an insignificant premium shortfall AGE: EBSA WHO: QBs who make an insignificant premium underpayment DEL: First class mail TIM: The sooner the better; 30 day clock starts when notice is sent PEN: Failure to send notice constitutes acceptance of payment Insignificant premium underpayment is lesser of: 10% of premium or $50 28

Insignificant Underpayment Period March 1 Due date April 5 Notice of Insignificant Underpayment sent May 5 End of insignificant underpayment grace period March 25 Insignificant underpayment received 29

Medicare Notices 30

Medicare Part D Participant Creditable/Non-Creditable Coverage Notice PUR: To notify participants of creditable status of prescription drug coverage AGE: HHS Centers for Medicare and Medicaid Services (CMS) WHO: Medicare Part D-eligible participants DEL: First class mail TIM: Before October 15, upon change in creditable status, upon request PEN: None specified but could incur fiduciary liability Three types of notices: Creditable Coverage Non-Creditable Coverage Personalized Notice 31

Medicare Part D CMS Creditable/Non-Creditable Coverage Notice PUR: To notify CMS of Creditable status of prescription drug coverage AGE: CMS WHO: CMS DEL: On-line TIM: Within 60 days of start of plan year Pen: Unspecified 32

Medicare Secondary Payer Reporting Medicare, Medicaid, and SCHIP Extension Act (MMSEA) Section 111 PUR: To disclose to CMS participants who may be enrolled in Medicare AGE: CMS WHO: CMS DEL: Electronically by Responsible Reporting Entity TIM: Quarterly PEN: Up to $1,000 per day per individual 33

Medicare Secondary Payer Reporting Cont. Applies to: – HRAs – Insured and self funded medical plans Does not apply to: – Health FSAs – Health Savings Accounts – HIPAA-excepted benefits 34

WHCRA Notice 35

Women’s Health & Cancer Rights Act WHCRA PUR: To notify participants of benefits related to breast surgery & reconstruction AGE: EBSA WHO: Participants DEL: With SPD and other plan materials TIM: At initial enrollment and annually PEN: Up to $110 per day 36

ACA Notices 37

Summary of Benefits and Coverage PUR: To provide a “four-page” summary of benefits for plan comparison purposes AGE: EBSA, CMS, IRS WHO: Participants DEL: With enrollment materials TIM: March 23, 2012, then 30 days before plan year or 60 days before material modification and upon request PEN: Up to $1,000 for each failure and $100 daily IRS excise tax March 23, 2012 start date was delayed to September 23,

Grandfathered Plan Notice PUR: To alert participants to plan’s grandfathered status, exempting it from some reform requirements AGE: EBSA, CMS, IRS WHO: Participants DEL: With plan materials TIM: Provided at same time plan materials are provided (i.e., initial & open enrollment) PEN: Loss of grandfathered status 39

Patient Protection Notice PUR: To notify participants of rights to choose primary care provider, OB/GYN & pediatricians AGE: EBSA, CMS, IRS WHO: Participants DEL: With SPD and other plan participants TIM: Provided at same time SPD and plan materials are provided (i.e., initial & open enrollment) PEN: Unspecified 40

Notice of Exchanges Employers must provide it prior to January 2014; however no date has been determined Explains how exchanges work Explains how employers fund coverage Explains how exchanges work with Medicare and Medicaid

ERISA Notices 42

Summary Plan Descriptions SPD PUR: To notify participants of basic rights under ERISA plan AGE: EBSA WHO: Covered employees DEL: Within 90 days of enrollment, within 120 days of plan formation, every five years TIM: At initial enrollment and annually PEN: Up to $110 per day SPDs have numerous specific content requirements; typical insurance documents do not satisfy these requirements 43

Summary of Material Modifications SMM PUR: To notify participants of material modifications to ERISA plan (e.g., benefit reductions, cost changes) AGE: EBSA WHO: Covered employees DEL: Sent in a manner “reasonably calculated to ensure receipt” (e.g., first class mail) TIM: Within 210 days of plan year end, within 60 days of change for material benefit reductions PEN: Up to $110 per day 44

Summary Annual Report SAR PUR: To provide participants a report that mirrors Form 5500 AGE: EBSA WHO: Participants DEL: First class mail or electronically TIM: Within two months of Form 5500 deadline, including extensions PEN: Up to $110 per day 45

Form 5500 Annual Benefit Plan Report PUR: To provide EBSA on ERISA plans with 100 or more participants AGE: EBSA WHO: EBSA DEL: Electronically (EFAST) TIM: End of 7 th month after plan year (e.g., July 31 st for calendar plan years), 2 ½-month extension available PEN: Civil fine: up to $1,000 per day, Non-filers: $50 per day & potential criminal liability for willful violations 46

Action Plan 47

Click on link to go through DOL steps Subscribe to Thompson HR publication 48

Action Plan Create a master list of all notices and disclosure your organization must comply with Communicate throughout the organization about the key expectations regarding those laws Include summaries of the laws as appropriate in the employee handbook Provide training for supervisors and managers as to the operational requirements 49

Resources 50

Resources General EEOC Notice 29 USC § USC §