Enrollment Materials Are a Good Time To Provide Annual & PPACA Notices

We are a grandfathered plan – what PPACA notices must we include in our enrollment materials?

Grandfathered plans must provide a notice about their grandfathered status in any materials describing benefits.  If the enrollment materials describe benefits, the grandfathered plan notice should be included.  The agencies have issued a model notice at http://www.dol.gov/ebsa/grandfatherregmodelnotice.doc.

We are not grandfathered – what PPACA notices must we include in our enrollment materials?

There are no particular PPACA notices that must be provided in enrollment materials.  However, several PPACA notices must be included in the plan’s SPD, which often is provided at enrollment.  These notices include:

• Provider Choice Notice – This notice must describe the participant’s right to choose a primary care provider, where the plan requires designation of a primary care provider.  The notice also must describe a child’s right to select a pediatrician as his or her primary care provider.  The agencies have issued model language at http://www.dol.gov/ebsa/patientprotectionmodelnotice.doc.
• Access to OB-GYN Notice – This notice must state that a woman can see a health care professional specializing in gynecology without prior authorization or referral.  The agencies have issued model language at http://www.dol.gov/ebsa/patientprotectionmodelnotice.doc.
• External Review Notice – Plans must provide a description of the new external review process, including a participant’s right to file a request for external review.  The agencies have not issued model language.

What other PPACA notices are required?

Other PPACA notices are based on the plan's particular circumstances.  Plans may include these in the enrollment materials or in their SPDs if provided within the timeframes required by these notices.

• Waiver of Annual Limit Notice – Plans that have applied for a waiver from the annual limit requirements under PPACA must notify participants that the plan does not meet the minimum annual limit requirements.  For plan years beginning on or after February 1, 2011, the notice must be provided as part of any informational material or any plan documents, such as enrollment materials or SPDs.  The notice must be prominently displayed in 14-point bold type.  The Department of Health and Human Services has issued model language - http://www.healthcare.gov/law/resources/regulations/guidance-limited-benefit-2nd-supp-bulletin-120910.pdf .
• Early Retiree Reinsurance Program Notice – Plans receiving funds under the Early Retiree Reinsurance Program (ERRP) must notify participants about how ERRP funds are being used.  The Department of Health and Human Services has issued a form notice, which must be provided within a reasonable time after a plan begins receiving funds.  Many plans are including this notice in their enrollment materials.  http://www.errp.gov/download/Notice_to_Plan_Participants.pdf

Do we need to include notices about enrollment for children under age 26 or for individuals who have reached their lifetime limits?

No, plans can remove the special enrollment notices for adult children under age 26 and for individuals who previously reached an overall lifetime maximum.  Those notices were required in last year's enrollment materials, but the special enrollment period is over, so they can be removed for this year. 

What other notices should the plan include in enrollment materials?

Typically, plans include a variety of required notices in enrollment materials (or in the SPD, if it is part of the enrollment materials).  These notices generally are required to be provided at enrollment or annually and include:

• the initial COBRA notice,
• the HIPAA pre-existing condition exclusion notice,
• the HIPAA special enrollment notice,
• the Women's Health and Cancer Rights Act (WHCRA) notice,
• the Medicare Part D notice of creditable (or non-creditable) coverage,
• the Children's Health Insurance Program Reauthorization Act (CHIPRA) notice, and
• the HIPAA privacy notice. 

The agencies have issued model language for all of these notices, except the HIPAA privacy notice.

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Contributors:

Christy Tinnes is a Principal in the Health & Welfare Group of Groom Law Group in Washington, D.C.  She is involved in all aspects of health and welfare plans, including ERISA, HIPAA portability, HIPAA privacy, COBRA, and Medicare.  She represents employers designing health plans as well as insurers designing new products.  Most recently, she has been extensively involved in the insurance market reform and employer mandate provisions of the health-care reform legislation.

Brigen Winters is a Principal at Groom Law Group, Chartered, where he co-chairs the firm's Policy and Legislation group. He counsels plan sponsors, insurers, and other financial institutions regarding health and welfare, executive compensation, and tax-qualified arrangements, and advises clients on legislative and regulatory matters, with a particular focus on the recently enacted health-reform legislation.

PLEASE NOTE:  This feature is intended to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.