Summary of Benefits and Coverage under Health Care Reform

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1 Summary of Benefits and Coverage under Health Care Reform This is just one example of the many online resources Practical Law Company offers. PLC Employee Benefits & Executive Compensation This Note provides an overview of the requirement under health care reform that group health plans and insurers provide participants and beneficiaries with a four page (double-sided) summary of benefits and coverage available under the plan. This disclosure requirement includes coverage examples and standardized definitions that were developed in coordination with the National Association of Insurance Commissioners (NAIC). Under health care reform, group health plans and insurers must provide participants and beneficiaries with: Summaries of benefits and coverage (SBCs) that accurately describe the benefits and coverage under the applicable plan or coverage. Notices of modification if material changes are made to any of the plan or coverage terms that are not reflected in the most recently provided SBC (see Notice of Material Modifications). SBCs are intended to help employees who are offered group coverage to compare: Different employer-provided health care options. Their employer's options with other coverage for which they may be eligible (for example, a spouse's employer-provided coverage or a former employer's COBRA coverage). This Note examines these requirements, and in particular: Explains who must provide and receive SBCs and notices of material modifications. Describes when SBCs and notices of material modifications must be furnished. Discusses appearance, language, content and form requirements. Addresses additional SBC requirements involving coverage examples and the uniform glossary. On August 22, 2011, the Departments of Labor (DOL), Health and Human Services (HHS) and Treasury (collectively, the "Departments") issued: Proposed regulations to implement the SBC and notice of material modifications requirements. To access this resource and others, visit practicallaw.com. Additional related documents with the proposed regulations, including: an SBC template that must be used (see SBC Template); corresponding instructions; a completed sample SBC; a guide for calculating coverage examples calculations, which are included in SBCs; and a uniform glossary (see Uniform Glossary). HHS also provided several Microsoft Excel spreadsheets and related documents for simulating coverage examples as part of the SBC disclosures (see Coverage Examples). SIGNIFICANT PENALTIES FOR NONCOMPLIANCE A fine of up to $1,000 can be imposed against a plan administrator or insurer that willfully fails to provide an SBC (see Plans and Insurers Must Provide SBCs). Each failure to provide an SBC to an individual or entity is considered a separate violation. PLANS AND INSURERS MUST PROVIDE SBCS For self-insured health plans, SBCs must be provided by the plan sponsor or designated plan administrator, as defined in Section 3(16) of the Employee Retirement Income Security Act of 1974 (ERISA). For insured plans, the insurer must provide SBCs. Start your free trial now practicallaw.com

2 Summary of Benefits and Coverage under Health Care Reform DISTRIBUTION RULES SBCs must be provided beginning March 23, 2012 (that is, 24 months after the enactment of the Patient Protection and Affordable Care Act (PPACA)). For ERISA plans, SBCs must be provided in addition to: Summary plan descriptions (SPDs). Summaries of material modifications. In the proposed regulations, the Departments requested comments regarding whether SBCs can be provided within an SPD if: The SBC is intact and prominently displayed at the beginning of the SPD. The timing rules for providing SBCs are satisfied (see Timing Rules for Providing SBCs). SBCs must be provided in writing and free of charge, and generally may be furnished in either paper or electronic form (see Form and Manner). SBC REQUIREMENT APPLIES TO GRANDFATHERED PLANS Under health care reform, group health plans and coverage that existed on March 23, 2010 are exempted from complying with certain requirements added by the law. These plans are referred to as "grandfathered" health plans. The SBC requirement applies to grandfathered plans. However, the SBC requirement does not apply to "excepted benefits" as defined under the Public Health Services Act (for example, limited-scope dental and vision plans). TIMING RULES FOR PROVIDING SBCS In general, an SBC must be provided when a plan or individual is comparing health insurance options. SBCs must be furnished: By plans or insurers to participants and beneficiaries, as defined under ERISA, at certain times, including at enrollment, on request and when there are changes to SBC-required information (see SBCs Provided by Plans or Insurers to Participants and Beneficiaries). By insurers to plans (see SBCs Provided by Insurers to Plans). SBCs Provided by Plans or Insurers to Participants and Beneficiaries SBCs must be provided by plans or insurers to participants or beneficiaries: On request. An SBC must be provided upon request by a participant or beneficiary as soon as practical following the request, but no later than seven days following the request. At enrollment. An SBC must be provided for each benefit package offered for which an individual is eligible to enroll. The SBC must be provided: with any written enrollment materials; or if no enrollment materials are distributed, no later than the first date the participant is eligible to enroll in coverage. Following a change in information. A current SBC must be provided no later than the first day of coverage if there is a change to any SBC-required information before the first day of coverage. Renewal/annual enrollment. A new SBC must be provided when coverage is renewed (that is, at annual enrollment). The SBC must be provided no later than: the date that any written materials (paper or electronic) required for enrollment are distributed; or 30 days before the first day of coverage under the new plan year if renewal is automatic. Special enrollment rights. SBCs must be provided within seven days of a request for enrollment to individuals who are special enrollees under the Health Insurance Portability and Accountability Act. SBCs Provided by Insurers to Plans SBCs must be provided by insurers offering group health coverage to a group health plan (including its sponsor) upon: Application or request for information. SBCs must be provided upon a plan's application or request for information about the health coverage as soon as practical following the request, but no later than seven days following the request. A change in information after application. A second SBC must be provided if: an SBC is provided upon request for information about coverage and the plan subsequently applies for coverage; and information included in the first SBC has changed. A change in information before coverage. If there is any change in SBC-required information before: the coverage is offered, the insurer must provide the plan an updated SBC no later than the date of the offer; or the first day of coverage, the insurer must provide the plan an updated SBC no later than the first day of coverage. Renewal. A new SBC must be provided if the policy, certificate or contract is renewed or reissued (for example, for a later policy year). The SBC must be provided: for renewals requiring written application (either paper or electronic), by the date the plan materials are distributed; or for automatic renewal or reissuance, 30 days before the first day of the new policy year. Preventing Duplication of SBCs The proposed regulations included three rules intended to prevent duplication in providing SBCs. First, the SBC requirement is considered to be satisfied if any entity provides the SBC, as long as all timing and content requirements are satisfied. For example, if an insurer provides a complete and timely SBC to a plan's participants and beneficiaries, the plan's SBC obligation is also satisfied. 2

3 Second, if a participant and beneficiary are known to reside at the same address, a single SBC may be provided to that address. However, if a beneficiary's last known address is different from the participant's last known address, a separate SBC must be provided to the beneficiary at the beneficiary's last known address. Third, for renewals, the plan and insurer must automatically provide a new SBC only for the benefit package in which the individual is enrolled. However, a participant or beneficiary may request an SBC for another benefit package for which the individual is eligible. The SBC must be provided as soon as practical, but not later than seven days following the request. SBCs Provided by Insurers Offering Individual Market Coverage Although outside the scope of this Note, the requirements for providing SBCs for individual health insurance coverage are generally the same as those for group health insurance coverage. FORM AND CONTENT REQUIREMENTS SBCs must satisfy specific requirements relating to: Appearance (see Appearance). Language (see Language). Content (see Content). Form and Manner (see Form and Manner). The proposed regulations include an SBC template, instructions, coverage examples and uniform glossary to satisfy these requirements (see SBC Template). The documents follow draft documents provided to the Departments by the National Association of Insurance Commissioners (NAIC). Appearance SBCs must: Be provided as a stand-alone document: in a form authorized by the Departments; and completed consistent with corresponding instructions. Be presented in a uniform format. Not exceed four pages in length. The Departments interpreted this requirement to mean four double-sided pages. Not include print smaller than 12-point font. SBCs may be in black and white or color. Language SBCs must be provided: In a culturally and linguistically appropriate manner. Using terminology that is understandable by the average plan enrollee. The proposed regulations provide that a plan or insurer meets the "culturally and linguistically appropriate manner" standard by satisfying the requirements for providing appeals notices in a culturally and linguistically appropriate manner (for more information on these rules, see Practice Note, Internal Claims and Appeals under Health Care Reform ( com/ )). This generally means that in US counties in which at least 10% of the population is literate only in the same non-english language, plans and insurers must provide: Interpretive services. Written translations of the SBC upon request in certain non- English languages. Disclosure, in the English version of SBCs, of the availability of language services in the relevant non-english language. Content An SBC must include: Uniform definitions of standard insurance and medical terms (see Standardized Insurance and Medical Terms) so that individuals may: compare health insurance coverage; and understand the terms of their coverage, or exceptions to the coverage. A description of the coverage, including cost sharing for: each of the categories of "essential health benefits" described in Section 1302(b)(1) of PPACA (including, ambulatory patient services, emergency services, hospitalization, maternity and newborn care); and other benefits, as identified by HHS. Exceptions, reductions and limits on coverage. Cost-sharing provisions, including deductible, co-insurance and co-payment obligations. Renewability and continuation of coverage provisions. Examples of common benefits scenarios (see Coverage Examples), based on recognized clinical practice guidelines, including: pregnancy; serious or chronic medical conditions; and related cost sharing. The proposed regulations: Include three proposed coverage examples that must be included in an SBC. Indicate that the Departments may identify up to six coverage examples that may be required in the future. A statement that: the SBC is only a summary of the policy or certificate; and the coverage document should be consulted to determine the governing contractual provisions. A contact number for individuals to call with additional questions. An Internet web address where a copy of the actual individual coverage policy or group certificate of coverage can be reviewed and obtained. 3

4 Summary of Benefits and Coverage under Health Care Reform For coverage beginning on or after January 1, 2014, a statement of whether: the plan or coverage provides "minimum essential coverage," as defined under Section 5000A(f) of the Internal Revenue Code ( added under health care reform; and the plan or coverage share of the total allowed costs of benefits provided under the plan is not less than 60% of the costs. For plans and insurers that maintain one or more network of providers, an Internet address or similar contact information for obtaining a list of providers. For plans or insurers that use a formulary in providing prescription drug coverage, an Internet address or similar contact information for obtaining information on prescription drug coverage. An Internet address for obtaining the uniform glossary (see Uniform Glossary). Premiums, or for self-insured health plans, the cost of coverage. Coverage Examples SBCs must include coverage examples that illustrate benefits provided under the plan for common benefit scenarios (for example, pregnancy). The coverage examples must be based on recognized clinical practice guidelines. A benefits scenario is a hypothetical situation: Consisting of a sample treatment plan for a specified medical condition and time period. Based on recognized clinical practice guidelines. The benefits scenario is intended to: Simulate the plan's or insurer's processing of claims under the scenario. Illustrate costs that a participant or beneficiary can expect to share with the plan or coverage. The Departments provided a Guide for Coverage Examples Calculations for use in preparing the coverage examples, along with the following documents, which are available through the DOL website: Filled-in Microsoft Excel spreadsheets with coverage examples for breast cancer, diabetes and maternity, and a blank Excel spreadsheet. Corresponding narrative statements for the coverage examples. The Microsoft Excel coverage examples include: A brief description of major services related to the condition (for example, in the maternity scenario, routine obstetric care). Sample care costs and related categories (for example, hospital charges for baby and mother). Standard assumptions (for example, that all services addressed are deemed medically necessary). Specific medical condition information, including dates of service, diagnosis and billing codes, and allowed charges associated with each scenario. Together, the coverage guide, Microsoft Excel spreadsheets and related documents comprise the information needed to perform coverage example calculations. According to HHS, plans or insurers will eventually be able to create benefits scenarios using automated systems for each benefits package they offer. The proposed regulations indicate that the specific information needed to prepare the coverage examples (for example, billing codes) will be updated annually. The Departments propose that 90 days after HHS updates this information, a plan's or insurer's SBCs must reflect the new information for providing coverage examples. For example, if HHS issues updated information on September 15, SBCs that are required on or after December 14 of the same year would need to include coverage examples calculated using the updated information. According to the Departments, the annual updates alone will not be considered a material modification (see Notice of Material Modification). Form (Paper or Electronic) The electronic disclosure requirements differ depending on who is providing the SBC. SBCs Provided By Plans or Insurers to Participants and Beneficiaries An SBC provided by an ERISA plan or insurer can be provided in paper form. Alternatively, an ERISA plan or its insurer can provide SBCs electronically to participants or beneficiaries if the DOL's electronic disclosure rules are followed. For non-federal governmental plans, an SBC may be provided electronically by the plan to a participant or beneficiary if the substance of the DOL's electronic disclosure rules are satisfied. SBCs Provided By an Insurer to a Plan SBCs provided by an insurer to a plan can be provided in paper form. SBCs can be provided in electronic form, for example, by or an Internet posting, if the following requirements are satisfied: The format is readily accessible by the plan. The SBC is provided in paper form free of charge on request. For Internet postings, the insurer timely notifies the plan in paper or that the documents are available on the Internet and provides the Internet address. SBC Template The proposed regulations include an SBC Template and corresponding instructions for use by group health plans in completing SBCs. The regulations also provided a: Sample Completed SBC. Sample language for completing the "Why This Matters" section of the SBC, including both yes and no answers (see Standardized Insurance and Medical Terms). Guide for Coverage Examples Calculations. The SBC template, with the uniform glossary (see Uniform Glossary), must be used to satisfy the disclosure requirements. 4

5 However, the Departments indicated that changes to the SBC template may be appropriate to: Accommodate various types of plan and coverage designs. Provide additional information to individuals. Improve the effectiveness of the disclosures. The Departments acknowledged that the SBC template and related documents: Were prepared by the NAIC primarily for use by health insurers. May require additional changes for some group health plans. The form language and formatting in the SBC template must be precisely reproduced, unless the instructions allow or instruct otherwise. Additionally: Ordering of the charts and columns should not be changed. Only certain abbreviations may be used. Standardized Insurance and Medical Terms The health care reform law requires SBCs to include uniform definitions of: Insurance-related terms (see Insurance Terms). Medical terms (see Medical Terms). The proposed regulations adopted a two-part approach for satisfying the uniform definitions requirement. First, the regulations include a uniform glossary of health coverage terms and definitions (see Uniform Glossary). The uniform glossary must: Be made available to participants and beneficiaries in connection with the SBC. Satisfy the appearance (see Appearance) and form requirements for SBCs (see Form of Providing SBCs). Second, the SBC template includes a "Why This Matters" column and corresponding instructions for use by plans and insurers in completing the SBC template. The instructions address how plans and insurers must complete each coverage component. The following documents provide additional guidance: Why This Matters language for "Yes" Answers. Why This Matters language for "No" Answers. Uniform Glossary In connection with the proposed regulations, the Departments issued a uniform glossary that: Includes definitions of insurance, medical and additional terms, to be provided with SBCs. Provides simple, descriptive definitions intended to assist consumers understand terms and concepts commonly used in health coverage. The proposed regulations require a plan or insurer to make the uniform glossary available upon request within seven days. This requirement may be met by providing: An Internet address where individuals may review and obtain the uniform glossary. A place on the plan's or insurer's web site where individuals may review and obtain the uniform glossary. Insurance Terms As required under health care reform, the uniform glossary includes standard definitions for the following insurance terms: Premium, deductible, co-insurance, co-payment and out-ofpocket limit. Preferred and non-preferred provider. Out-of-network co-payments. Usual, customary and reasonable fees. Excluded services. Grievance and appeal. The proposed regulations also request comments on whether the term "external review," which would correspond with the expanded requirements under health care reform, should also be defined in the uniform glossary. For more information, see Practice Note, External Review under Health Care Reform ( Medical Terms As required under health care reform, the uniform glossary includes standard definitions for the following medical terms: Hospitalization and hospital outpatient care. Emergency room care. Physician services. Prescription drug coverage. Durable medical equipment. Home health and skilled nursing care. Rehabilitation and hospice services. Emergency medical transportation. Other terms as deemed appropriate by HHS. Additional Terms Added under Proposed Regulations The Departments included several additional uniform glossary terms in the proposed regulations, including: Balance billing. Complications of pregnancy. Emergency services. Co-insurance. In-network co-payment. Medically necessary. Plan. 5

6 Summary of Benefits and Coverage under Health Care Reform Preauthorization. Reconstructive surgery. Urgent care. NOTICE OF MATERIAL MODIFICATIONS An additional notice rule applies if plans or insurers make any material modification: To the terms of the plan or coverage involved. That would affect the content of the SBC. That is not reflected in the most recently provided SBC. That occurs other than in connection with a renewal or reissuance of coverage. The plan or insurer must provide notice of the modification to enrollees at least 60 days before the modification's effective date. A material modification is any change to coverage offered that would be considered by an average plan participant to be an important change in covered benefits or other terms of coverage. A material modification can include: An enhancement of covered benefits or services. Other more generous plan or policy terms. FEDERAL STANDARDS PREEMPT RELATED STATE REQUIREMENTS The SBC standards preempt any related state standards that: Require a summary of benefits and coverage. Provide less information than required under the federal health care reform requirement. Therefore, states are not prevented from imposing separate, additional disclosure requirements on insurers. Practical Law Company provides practical legal know-how for law firms, law departments and law schools. Our online resources help lawyers practice efficiently, get up to speed quickly and spend more time on the work that matters most. This resource is just one example of the many resources Practical Law Company offers. Discover for yourself what the world s leading law firms and law departments use to enhance their practices. To request a complimentary trial of Practical Law Company s online services, visit practicallaw.com or call For example, a material modification includes: Coverage of previously excluded benefits or reduced costsharing. A material reduction in covered services. More stringent requirements for receipt of benefits. Changes or modifications that reduce or eliminate benefits, increase premiums and cost-sharing or impose a new referral requirement. The notice of material modification requirement can be satisfied by either: A separate notice describing the change. An updated SBC reflecting the change. The notice of material modifications must be provided in a manner consistent with the form rules for SBCs (see Form and Manner). This 60-day notice requirement is in advance of the timing rules under ERISA and the DOL regulations for providing a summary of material modification (SMM). In general, those rules require that an SMM be provided: Not later than 210 days after the end of the plan year in which the change was adopted. In the case of a material reduction in covered services or benefits, not later than 60 days after the date the change is adopted. However, if a complete and timely notice of material modifications is provided under the SBC rules, the SMM requirement will also be satisfied. Use of PLC websites and services is subject to the Terms of Use ( and Privacy Policy (

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