Self-Compliance Tool for Part 7 of ERISA: Health Care-Related Provisions

Transcription

1 Self-Compliance Tool for Part 7 of ERISA: Health Care-Related Provisions INTRODUCTION This self-compliance tool is intended to help grop health plans, plan sponsors, plan administrators, health insrance issers, and other parties determine whether a grop health plan is in compliance with some of the provisions of Part 7 of ERISA. The reqirements described in this Part 7 tool generally apply to grop health plans and grop health insrance issers. However, references in this tool generally are limited to grop health plans or plans for convenience. In addition, these provisions generally do not apply to retiree-only or excepted benefits plans (See 29 CFR ). This self-compliance tool is not meant to be considered legal advice. Rather, it is intended to give the ser a basic nderstanding of Part 7 of ERISA to better carry ot plan-related responsibilities. It provides a smmary of the statte, recent reglations and other gidance issed by the Department. In addition, some of the provisions discssed involve isses for which rles have not yet been finalized. Proposed rles, interim final rles, and transition periods generally are noted. Periodically check the Department of Labor s Website (dol.gov/ebsa) nder Laws & Reglations for pblication of final rles. Cmlative List of Self-Compliance Tool Qestions for Health Care-Related Stattes Added to Part 7 of ERISA I. Determining Compliance with the HIPAA Provisions in Part 7 of ERISA If yo answer No to any of the qestions below, the grop health plan is in violation of the HIPAA provisions in Part 7 of ERISA. YES NO N/A The Health Insrance Portability and Accontability Act (HIPAA) incldes provisions of Federal law governing health coverage portability, health information privacy, administrative simplification, medical savings acconts, and long-term care insrance. The Department of Labor is responsible for the law s portability and nondiscrimination reqirements. HIPAA s portability provisions affect grop health plan coverage in the following ways: Provide certain individals special enrollment rights in grop health coverage when specific events occr, e.g., birth of a child (regardless of any open season) (see Section A), and Prohibit discrimination in grop health plan eligibility, benefits, and premims based on specific health factors (see Sections B-C). 62

2 While HIPAA previosly provided for limits with respect to preexisting condition exclsions, new protections nder the Affordable Care Act now prohibit the imposition of preexisting condition exclsions for plan years beginning on or after Janary 1, For plan years beginning on or after Janary 1, 2014, plans are no longer reqired to isse the general notice of preexisting condition exclsion or individal notice of period of preexisting condition exclsion. HIPAA certificates of creditable coverage mst be provided throgh the end of 2014 (December 31, 2014) so that individals who may need to offset a preexisting condition exclsion nder a non-calendar year plan wold still have access to a certificate of creditable coverage throgh the end of See 29 CFR , 5; 29 CFR (a). SECTION A Compliance with the Special Enrollment Provisions Grop health plans mst allow individals (who are otherwise eligible) to enroll pon certain specified events, regardless of any late enrollment provisions, if enrollment is reqested within 30 days (or 60 days in the case of the special enrollment rights added by the Children s Health Insrance Program Reathorization Act of 2009 (CHIPRA), discssed in Qestion 3) of the event. The plan mst provide for special enrollment, as follows: Qestion 1 Special enrollment pon loss of other coverage Does the plan provide fll special enrollment rights pon loss of other coverage?... A plan mst permit loss-of-coverage special enrollment pon: (1) loss of eligibility for grop health plan coverage or health insrance coverage; and (2) termination of employer contribtions toward grop health plan coverage. See ERISA section 701(f)(1); 29 CFR (a). When a crrent employee loses eligibility for coverage, the plan mst permit the employee and any dependents to special enroll. See 29 CFR (a)(2)(i). When a dependent of a crrent employee loses eligibility for coverage, the plan mst permit the dependent and the employee to special enroll. See 29 CFR (a)(2)(ii). Examples: Examples of reasons for loss of eligibility inclde: legal separation, divorce, death of an employee, termination or redction in the nmber of hors of employment - volntary or involntary (with or withot electing COBRA), exhastion of COBRA, redction in hors, aging ot nder other parent s coverage, or moving ot of an HMO s service area. Loss of eligibility for coverage does not inclde loss de to the individal s failre to pay premims or termination of coverage for case - sch as for frad. See 29 CFR (a) (3)(i). When employer contribtions toward an employee s or dependent s coverage terminates, the plan mst permit special enrollment, even if the employee or 63

3 dependent did not lose eligibility for coverage. See 29 CFR (a) (3)(ii). Plans mst allow an employee a period of at least 30 days to reqest enrollment. See 29 CFR (a)(4)(i). Coverage mst become effective no later than the first day of the first month following a completed reqest for enrollment. See 29 CFR (a)(4)(ii). Tip: Ensre that the plan permits special enrollment pon all of the loss of coverage events described above. Qestion 2 Dependent special enrollment Does the plan provide fll special enrollment rights to individals pon marriage, birth, adoption, and placement for adoption?... Plans mst generally permit crrent employees to enroll pon marriage and pon birth, adoption, or placement for adoption of a dependent child. See ERISA section 701(f)(2); 29 CFR (b)(2). Plans mst generally permit a participant s spose and new dependents to enroll pon marriage, birth, adoption, and placement for adoption. See ERISA section 701(f)(2); 29 CFR (b)(2). Plans mst allow an individal a period of at least 30 days to reqest enrollment. See 29 CFR (b)(3)(i). In the case of marriage, coverage mst become effective no later than the first day of the month following a completed reqest for enrollment. See 29 CFR (b)(3)(iii)(A). In the case of birth, adoption, or placement for adoption, coverage mst become effective as of the date of the birth, adoption, or placement for adoption. See 29 CFR (b)(3)(iii)(B). Tips: Remember to allow all eligible employees, sposes, and new dependents to enroll pon these events. Also, ensre that the effective date of coverage complies with HIPAA, keeping in mind that some effective dates of coverage are retroactive. Qestion 3 Special enrollment rights provided throgh CHIPRA Does the plan provide fll special enrollment rights as reqired nder CHIPRA?... Under the following conditions a grop health plan mst allow an employee or dependent (who is otherwise eligible) to enroll, regardless of any late enrollment provisions, if enrollment is reqested within 60 days: 64

4 When an employee or dependent s Medicaid or CHIP coverage is terminated. When an employee or dependent is covered nder a Medicaid plan nder title XIX of the Social Secrity Act or nder a State Children s Health Insrance Plan (CHIP) nder title XXI of the Social Secrity Act and coverage of the employee or dependent is terminated as a reslt of loss of eligibility, a grop health plan mst allow special enrollment. The employee or dependent mst reqest special enrollment within 60 days after the date of termination of Medicaid or CHIP coverage. See ERISA section 701(f)(3). Upon Eligibility for Employment Assistance nder Medicaid or CHIP. When an employee or dependent becomes eligible for premim assistance, with respect to coverage nder the grop health plan or health insrance coverage nder a Medicaid plan or State CHIP plan, the grop health plan mst allow special enrollment. The employee or dependent mst reqest special enrollment within 60 days after the employee or dependent is determined to be eligible for assistance. See ERISA section 701(f)(3). Note: In addition, employers that maintain a grop health plan in a state with a CHIP or Medicaid program that provides for premim assistance for grop health plan coverage mst provide a written notice (referred to as the Employer CHIP Notice) to each employee to inform them of possible opportnities available in the state in which they reside for premim assistance for health coverage of employees or dependents. A model notice is available at dol.gov/ebsa/newsroom/ fschip.html. Qestion 4 Treatment of special enrollees Does the plan treat special enrollees the same as individals who enroll when first eligible, for prposes of eligibility for benefit packages and premims? If an individal reqests enrollment while the individal is entitled to special enrollment, the individal is a special enrollee, even if the reqest for enrollment coincides with a late enrollment opportnity nder the plan. See 29 CFR (d)(1). Special enrollees mst be offered the same benefit packages available to similarly sitated individals who enroll when first eligible. (Any difference in benefits or cost-sharing reqirements for different individals constittes a different benefit package.) In addition, a special enrollee cannot be reqired to pay more for coverage than a similarly sitated individal who enrolls in the same coverage when first eligible. See 29 CFR (d)(2). Qestion 5 Notice of special enrollment rights Does the plan provide timely and adeqate notices of special enrollment rights?... On or before the time an employee is offered the opportnity to enroll in the plan, the plan mst provide the employee with a description of special enrollment rights. 65

5 Tip: Ensre that the special enrollment notice is provided at or before the time an employee is initially offered the opportnity to enroll in the plan. This may mean breaking it off from the SPD. The plan can inclde its special enrollment notice in the SPD if the SPD is provided at or before the initial enrollment opportnity (for example, as part of the application materials). If not, the special enrollment notice mst be provided separately to be timely. A model notice is provided in the Model Disclosres on page 138. SECTION B Compliance with the HIPAA Nondiscrimination Provisions Overview. HIPAA prohibits grop health plans and health insrance issers from discriminating against individals in eligibility and contined eligibility for benefits and in individal premim or contribtion rates based on health factors. These health factors inclde: health stats, medical condition (inclding both physical and mental illnesses), claims experience, receipt of health care, medical history, genetic information, evidence of insrability (inclding conditions arising ot of acts of domestic violence and participation in activities sch as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing, and other similar activities), and disability. See ERISA section 702; 29 CFR Similarly Sitated Individals. It is important to recognize that the nondiscrimination rles prohibit discrimination within a grop of similarly sitated individals. Under 29 CFR (d), plans may treat distinct grops of similarly sitated individals differently, if the distinctions between or among the grops are not based on a health factor. If distingishing among grops of participants, plans and issers mst base distinctions on bona fide employment-based classifications consistent with the employer s sal bsiness practice. Whether an employment-based classification is bona fide is based on relevant facts and circmstances, sch as whether the employer ses the classification for prposes independent of qalification for health coverage. Bona fide employment-based classifications might inclde: fll-time verss part-time employee stats; different geographic location; membership in a collective bargaining nit; date of hire or length of service; or differing occpations. In addition, plans may treat participants and beneficiaries as two separate grops of similarly sitated individals. Plans may also distingish among beneficiaries. Distinctions among grops of beneficiaries may be based on bona fide employment-based classifications of the participant throgh whom the beneficiary is receiving coverage, relationship to the participant (sch as spose or dependent), marital stats, age of dependent children, or any other factor that is not a health factor. However, see section 2714 of the PHS Act, as amended by the Affordable Care Act and incorporated into section 715 of ERISA, for rles on defining dependents nder the plan. (For information regarding the Affordable Care Act, please visit or Website at dol.gov/ebsa/healthreform). Exception for benign discrimination: The nondiscrimination rles do not prohibit a plan from establishing more favorable rles for eligibility or premim rates for individals with an adverse health factor, sch as a disability. See 29 CFR (g). 66

6 Check to see that the plan complies with HIPAA s nondiscrimination provisions as follows: Qestion 6 Nondiscrimination in eligibility Does the plan allow individals eligibility and contined eligibility nder the plan regardless of any adverse health factor?... Examples of plan provisions that violate ERISA section 702(a) becase they discriminate in eligibility based on a health factor inclde: v Plan provisions that reqire evidence of insrability, sch as passing a physical exam, providing a certification of good health, or demonstrating good health throgh answers to a health care qestionnaire in order to enroll. See 29 CFR (b)(1). Also, note that it may be permissible for plans to reqire individals to complete physical exams or health care qestionnaires for prposes other than for determining eligibility to enroll in the plan, sch as for determining an appropriate blended, aggregate grop rate for providing coverage to the plan as a whole. See 29 CFR (b)(1)(iii) Example 1. Tip: Eliminate plan provisions that deny individals eligibility or contined eligibility nder the plan based on a health factor, even if sch provisions apply only to late enrollees. Qestion 7 Nondiscrimination in benefits Does the plan niformly provide benefits to participants and beneficiaries, withot directing any benefit restrictions at individal participants and beneficiaries based on a health factor?... Benefits provided mst be niformly available and any benefit restrictions mst be applied niformly to all similarly sitated individals and cannot be directed at any individal participants or beneficiaries based on a health factor. If benefit exclsions or limitations are applied only to certain individals based on a health factor, this wold violate ERISA section 702(a) and 29 CFR (b)(2). Examples of plan provisions that may be permissible nder ERISA section 702(a) inclde: v Limits or exclsions for certain types of treatments or drgs, v Limitations based on medical necessity or experimental treatment, and v Cost-sharing, if the limit applies niformly to all similarly sitated individals and is not directed at individal participants or beneficiaries based on a health factor. However, other provisions of law, sch as the Affordable Care Act, may prohibit some of these limitations (sch as PHS Act section 2713, reqiring plans and issers to provide coverage for, and not impose cost-sharing reqirements with 67

7 respect to, certain recommended preventive services. (For information regarding the Affordable Care Act, please visit or Website at dol.gov/ebsa/healthreform). Qestion 8 Sorce-of-injry restrictions If the plan imposes a sorce-of-injry restriction, does it comply with the HIPAA nondiscrimination provisions?... Plans may exclde benefits for the treatment of certain injries based on the sorce of that injry, except that plans may not exclde benefits otherwise provided for treatment of an injry if the injry reslts from an act of domestic violence or a medical condition. See 29 CFR (b)(2)(iii). An example of a permissible sorce-of-injry exclsion wold inclde: v A plan provision that provides benefits for head injries generally, bt excldes benefits for head injries sstained while participating in bngee jmping. An impermissible sorce-of-injry exclsion wold inclde: v A plan provision that generally provides coverage for medical/srgical benefits, inclding hospital stays that are medically necessary, bt excldes benefits for self-inflicted injries or attempted sicide. This is impermissible becase the plan provision excldes benefits for treatment of injries that may reslt from a medical condition (depression). If the plan does not impose a sorce-of-injry restriction, check N/A and skip to Qestion 9. Qestion 9 Nondiscrimination in premims or contribtions Does the plan comply with HIPAA s nondiscrimination rles regarding individal premim or contribtion rates?... Under ERISA section 702(b) and 29 CFR (c), plans may not reqire an individal to pay a premim or contribtion that is greater than a premim or contribtion for a similarly sitated individal enrolled in the plan on the basis of any health factor. For example, it wold be impermissible for a plan to reqire certain fll-time employees to pay a higher premim than other fll-time employees based on their prior claims experience. Nonetheless, the nondiscrimination rles do not prohibit a plan from providing a reward based on adherence to a wellness program. See ERISA section 702(b)(2)(B); PHS Act section Final rles for wellness programs were pblished on Jne 6, 2013 at 29 CFR and 29 CFR (These rles were issed throgh athority nder the Affordable Care Act (PHS section 2705) and nder the HIPAA nondiscrimination provisions. These rles apply to both grandfathered and nongrandfathered grop health plans.) 68

8 To help evalate whether this exception is available, refer to Section C on page 70. Once yo have completed Section C, retrn to this page to contine with Qestion 10, below. Qestion 10 List billing Is there compliance with the list billing provisions?... Under 29 CFR (c)(2)(ii), plans and issers may not charge or qote an employer a different premim for an individal in a grop of similarly sitated individals based on a health factor. This practice is commonly referred to as list billing. If an isser is list billing an employer and the plan is passing the separate and different rates on to the individal participants and beneficiaries, both the plan and the isser are violating the prohibition against discrimination in premim rates. This does not prevent plans and issers from taking the health factors of each individal into accont in establishing a blended/aggregate rate for providing coverage to the plan. Note: Plans and issers are not permitted to adjst premim or contribtion rates based on genetic information of one or more individals in the grop. For more information on discrimination based on genetic information, refer to Section V. Note also that, nder the Affordable Care Act, certain premim rating reqirements apply to health insrance coverage in the small grop market. Visit HealthCare.gov for more information. Qestion 11 Nonconfinement clases Is the plan free of any nonconfinement clases?... Typically, a nonconfinement clase will deny or delay eligibility for some or all benefits if an individal is confined to a hospital or other health care instittion. Sometimes nonconfinement clases also deny or delay eligibility if an individal cannot perform ordinary life activities. Often a nonconfinement clase is imposed only with respect to dependents, bt they sometimes are also imposed with respect to employees. 29 CFR (e) (1) explains that these nonconfinement clases violate ERISA sections 702(a) (if the clase delays or denies eligibility) and 702(b) (if the clase raises individal premims). Tip: Delete all nonconfinement clases. Qestion 12 Actively-at-work clases Is the plan free of any impermissible actively-at-work clases?... Typically, actively-at-work provisions delay eligibility for benefits based on an individal being absent from work. 29 CFR (e)(2) explains that actively-at-work provisions generally violate ERISA sections 702(a) (if the clase delays or denies eligibility) and 702(b) (if the clase raises individal premims or contribtions), nless absence from work de to a health factor is treated, for prposes of the plan, as if the individal is at work. 69

9 Nonetheless, an exception provides that a plan may establish a rle for eligibility that reqires an individal to begin work for the employer sponsoring the plan before eligibility commences. Frther, plans may establish rles for eligibility or set any individal s premim or contribtion rate in accordance with the rles relating to similarly sitated individals in 29 CFR (d). For example, a plan that treats fll-time and parttime employees differently for other employment-based prposes, sch as eligibility for other employee benefits, may distingish in rles for eligibility nder the plan between fll-time and part-time employees. Tip: Careflly examine any actively-at-work provision to ensre consistency with HIPAA. SECTION C Compliance with the Wellness Program Provisions Use the following qestions to help determine whether the plan offers a program of health promotion or disease prevention that is reqired to comply with the Department s final wellness program reglations and, if so, whether the program is in compliance with the reglations. See final reglations issed by the Departments on Jne 6, 2013 at 29 CFR and 29 CFR These reglations se joint athority nder HIPAA and the ACA and apply for plan years beginning on or after Janary 1, 2014, however reglations nder HIPAA s nondiscrimination provisions relating to wellness programs were applicable for plan years prior to the applicability of these final wellness program rles. The reqirements relating to wellness programs apply to both grandfathered and non-grandfathered grop health plans (See frther discssion of grandfather stats nder the ACA section VII, A of this tool). Qestion 13 Does the plan have a wellness program?... A wide range of wellness programs exist to promote health and prevent disease. However, these programs are not always labeled wellness programs. Examples inclde: a program that redces individals costsharing for complying with a preventive care plan; a diagnostic testing program for health problems; and rewards for attending edcational classes, following healthy lifestyle recommendations, or meeting certain biometric targets (sch as weight, cholesterol, nicotine se, or blood pressre targets). Tip: Ignore the labels wellness programs can be called many things. Other common names inclde: disease management programs, smoking cessation programs, and case management programs. Qestion 14 Is the wellness program part of a grop health plan?... The wellness program is only sbject to Part 7 of ERISA if it is part of a grop health plan. If the employer operates the wellness program separate from the grop health plan, the program may be reglated by other laws, bt it is not sbject to the grop health plan rles discssed here. 70

10 Example: An employer instittes a policy that any employee who smokes will be fired. Here, the anti-smoking policy is not part of the grop health plan, so the wellness program rles do not apply. (Bt see 29 CFR , which clarifies that compliance with the HIPAA nondiscrimination rles, inclding the wellness program rles, is not determinative of compliance with any other provision of ERISA or any other State or Federal law, sch as the Americans with Disabilities Act.) Qestion 15 Does the program discriminate based on a health factor (i.e., is it a health-contingent program)?... A program discriminates based on a health factor if it reqires an individal to meet a standard related to a health factor in order to obtain a reward (or reqires an individal to ndertake more than a similarly sitated individal based on a health factor in order to obtain the same reward). A reward can be in the form of a discont or rebate of a premim or contribtion, a waiver of all or part of a cost-sharing mechanism (sch as dedctibles, copayments, or coinsrance), an additional benefit, or any other financial or other incentive. A reward can also be the avoidance of a penalty (sch as the absence of a srcharge, or other financial or nonfinancial disincentive). If none of the conditions for obtaining a reward is based on an individal satisfying a standard that is related to a health factor (or if a wellness program does not provide a reward), the wellness program is a participatory wellness program. See 29 CFR (f)(1)(ii). Example 1: Plan participants who have a cholesterol level nder 200 will receive a premim redction of 30 percent. In this Example 1, the plan reqires individals to meet a standard related to a health factor in order to obtain a reward. Example 2: A plan reqires all eligible employees to complete a health risk assessment to enroll in the plan. Employee answers are fed into a compter that identifies risk factors and sends edcational information to the employee s home address. In this Example 2, the reqirement to complete the assessment does not, itself, discriminate based on a health factor. However, if the plan sed individals specific health information to discriminate in individal eligibility, benefits, or premims, there wold be discrimination based on a health factor. Tip: Participatory wellness programs are permissible, provided the program is made available to all similarly sitated individals, regardless of health stats. If yo answered No to ANY of the above qestions 13-15, STOP. The plan is not sbject to the HIPAA wellness rles. If yo are completing this section as part of a review of yor plan, please contine to Section D. 71

11 Qestion 16 If the program discriminates based on a health factor, is the program saved by the benign discrimination provisions?... The Department s reglations at 29 CFR (g) permit discrimination in favor of an individal based on a health factor. Example: A plan grants participants who have diabetes a waiver of the plan s annal dedctible if they enroll in a disease management program that consists of attending edcational classes and following their doctor s recommendations regarding exercise and medication. This is benign discrimination becase the program is offering a reward to individals based on an adverse health factor. Tip: The benign discrimination exception is NOT available if the plan asks diabetics to meet a standard related to a health factor (sch as maintaining a certain body mass index (BMI)) in order to get a reward. In this case, an intervening discrimination is introdced and the plan cannot rely solely on the benign discrimination exception. If yo answered Yes to this qestion, STOP. There does not appear to be a violation of the wellness program rles. If yo are completing this section as part of a review of yor plan, please contine to Section D. If yo answered No to this qestion, proceed to Qestions 17 and 18. The health-contingent wellness program mst meet the 5 criteria. Qestion 17 Within the health-contingent wellness program category, is the program an activity-only program?... An activity-only wellness program is a type of health-contingent wellness program that reqires an individal to perform or complete an activity related to a health factor in order to obtain a reward bt does not reqire the individal to attain or maintain a specific health otcome. See 29 CFR (f)(1)(iv). v Examples inclde walking, diet or exercise programs. If yo answered Yes to this qestion, proceed to Qestion 19. If yo answered No to this qestion, proceed to Qestion 18. Qestion 18 Within the health-contingent wellness program category, is the program an otcome-based program?... An otcome-based wellness program is a type of health-contingent wellness program that reqires an individal to attain or maintain a specific health otcome (sch as not smoking or attaining certain reslts on biometric screenings) in order to obtain a reward. See 29 CFR (f)(1)(iv). 72

12 Qestion 19 Is the health-contingent program in compliance with the five reqirements?... A. Is the amont of the reward offered nder the plan limited to 30 percent (or 50 percent for programs designed to prevent or redce tobacco se) of the applicable cost of coverage? (29 CFR (f)(3)(ii) and 29 CFR (f)(4)(ii))... If only employees are eligible to participate, the amont of the reward mst not exceed 30 percent (or 50 percent) of the cost of employee-only coverage nder the plan. If employees and any class of dependents are eligible to participate, the reward mst not exceed 30 percent of the cost of coverage in which an employee and any dependents are enrolled. The 30 percent (or 50 percent) limitation on the amont of the reward applies to all of a plan s wellness programs that reqire individals to meet a standard related to a health factor. Example: If the plan has two wellness programs with standards related to a health factor, a 20 percent reward for meeting a BMI target and a 10 percent reward for meeting a cholesterol target, it wold meet the maximm limit on the total reward available, which is 30 percent. If instead, the program offered a 20 percent reward for meeting a body mass index target, a 10 percent reward for meeting a cholesterol target, and a 10 percent reward for completing a health risk assessment (regardless of any individal s specific health information), the rewards wold not need to be adjsted becase the 10 percent reward for completing the health risk assessment does not reqire individals to meet a standard related to a health factor. B. Is the plan reasonably designed to promote health or prevent disease? (29 CFR (f)(2)(iii) and 29 CFR (f)(4)(iii))... The program mst be reasonably designed to promote health or prevent disease. The program shold have a reasonable chance of improving the health of or preventing disease in participating individals, not be overly brdensome, not be a sbterfge for discriminating based on a health factor, and not be highly sspect in the method chosen to promote health or prevent disease. This determination is based on all the relevant facts and circmstances. C. Are individals who are eligible to participate given a chance to qalify at least once per year? (29 CFR (f)(3)(i) and 29 CFR (f) (4)(i))... 73

13 D. Is the reward available to all similarly sitated individals? Does the program offer a reasonable alternative standard? (29 CFR (f) (3)(iv) and 29 CFR (f)(4)(iv))... The wellness program rles reqire that the reward be available to all similarly sitated individals. A component of meeting this criterion is that the program mst have a reasonable alternative standard (or waiver of the otherwise applicable standard) that is frnished by the plan pon a participant s reqest. Activity-only programs A reasonable alternative standard mst be available for obtaining the reward for any individal for whom, for that period, it is nreasonably difficlt de to a medical condition to satisfy the otherwise applicable standard or medically inadvisable to attempt to satisfy the otherwise applicable standard. See 29 CFR (f)(3)(iv)(A)(1) If reasonable nder the circmstances, a plan or isser may seek verification, sch as a statement from an individal s personal physician, that a health factor makes it nreasonably difficlt for the individal to satisfy, or medically inadvisable for the individal to attempt to satisfy, the otherwise applicable standard. See 29 CFR (f)(3)(iv)(A)(2) Otcome-based wellness programs The reasonable alternative standard mst be available to any individal who does not meet the initial standard based on the measrement, test, or screening. See 29 CFR (f)(4)(iv)(A) Plans may not seek verification, sch as a statement from an individal s personal physician, that a health factor makes it nreasonably difficlt for the individal to satisfy, or medically inadvisable for the individal to attempt to satisfy the standard. See 29 CFR (f)(4)(iv)(E) E. Does the plan disclose the availability of a reasonable alternative standard in all plan materials describing the program? (29 CFR (f)(3)(v))... The plan or isser mst disclose the availability of a reasonable alternative standard in all plan materials describing the program and in any disclosre that an individal did not satisfy an initial otcome-based standard. If plan materials merely mention that the program is available, withot describing its terms, this disclosre is not reqired. Tip: The disclosre does not have to say what the reasonable alternative standard is in advance. The plan can individally tailor the standard for each individal, on a case-by-case basis. 74

14 The following sample langage can be sed to satisfy this reqirement: If it is nreasonably difficlt de to a medical condition for yo to achieve the standards for the reward nder this program, or if it is medically inadvisable for yo to attempt to achieve the standards for the reward nder this program, call s at [insert telephone nmber] and we will work with yo to develop another way to qalify for the reward. Note: This section highlights the five reqirements for a health-contingent program and briefly describes the separate reqirements for an activity-only program and an otcome-based program. For more information on the five reqirements and differences between the activity-only and otcome-based programs, please visit or Website at dol.gov/ebsa/healthreform. Taking into consideration whether the health-contingent wellness program is activity-only or otcome-based: If yo answered Yes to all of the 5 qestions on wellness program criteria, there does not appear to be a violation of the HIPAA wellness program rles. If yo answered No to any of the 5 qestions on wellness program criteria, the plan has a wellness program compliance isse. Specifically, Violation of the general benefit discrimination rle (29 CFR (b)(2)(i), 29 CFR (a)) If the wellness program varies benefits, inclding cost-sharing mechanisms (sch as dedctible, copayment, or coinsrance) based on whether an individal meets a standard related to a health factor and the program does not satisfy the reqirements of 29 CFR (f), the plan is impermissibly discriminating in benefits based on a health factor. The wellness program exception at 29 CFR (b)(2)(ii) is not satisfied and the plan is in violation of 29 CFR (b)(2)(i) and 29 CFR (a). Violation of general premim discrimination rle (29 CFR (c)(1), 29 CFR (a)) If the wellness program varies the amont of premim or contribtion it reqires similarly sitated individals to pay based on whether an individal meets a standard related to a health factor and the program does not satisfy the reqirements of 29 CFR (f), the plan is impermissibly discriminating in premims based on a health factor. The wellness program exception at 29 CFR (c)(3) is not satisfied and the plan is in violation of 29 CFR (c)(1) and 29 CFR (a). 75

15 SECTION D Compliance with the MEWA or Mltiemployer Plan Garanteed Renewability Provisions If the plan is a mltiple employer welfare arrangement (MEWA) or a mltiemployer plan, it is reqired to provide garanteed renewability of coverage in accordance with ERISA section 703. If the plan is a MEWA or mltiemployer plan, it mst meet the criteria described in Qestion 20. If the plan is not a MEWA or mltiemployer plan, check N/A and go to Part II of this self-compliance tool.... Qestion 20 Mltiemployer plan and MEWA garanteed renewability If the plan is a mltiemployer plan, or a MEWA, does the plan provide garanteed renewability?... Grop health plans that are mltiemployer plans or MEWAs may not deny an employer contined access to the same or different coverage, other than: v For nonpayment of contribtions; v For frad or other intentional misrepresentation by the employer; v For noncompliance with material plan provisions; v Becase the plan is ceasing to offer coverage in a geographic area; v In the case of a plan that offers benefits throgh a network plan, there is no longer any individal enrolled throgh the employer who lives, resides, or works in the service area of the network plan and the plan applies this paragraph niformly withot regard to the claims experience of employers or any health-related factor in relation to sch individals or dependents; or v For failre to meet the terms of an applicable collective bargaining agreement, to renew a collective bargaining or other agreement reqiring or athorizing contribtions to the plan, or to employ employees covered by sch agreement. See ERISA section 703. **Note: The Pblic Health Service (PHS) Act contains garanteed renewability reqirements for issers. 76

16 II. Determining Compliance with the Mental Health Parity Act (MHPA) and Mental Health Parity and Addiction Eqity Act (MHPAEA) Provisions in Part 7 of ERISA (together, the mental health parity provisions) If yo answer No to any of the qestions below, the grop health plan is in violation of the mental health parity provisions in Part 7 of ERISA. Introdction If the plan provides either mental health or sbstance se disorder benefits, in addition to medical/srgical benefits, the plan may be sbject to the mental health parity provisions in Part 7 of ERISA. Retiree-only plans, and those offering excepted benefits, are generally not sbject to the mental health parity provisions nder part 7 of ERISA. See 29 CFR for frther discssion. (Note: if nder an arrangement(s) to provide medical care by an employer or employee organization, any participant or beneficiary can simltaneosly receive coverage for medical/srgical benefits and mental health or sbstance se disorder benefits, the mental health parity reqirements apply separately with respect to each combination of medical/srgical benefits and mental health/sbstance se disorder benefits and all sch combinations are considered to be a single grop health plan. See 29 CFR (e).) If this is the case, answer Qestions If the plan does not provide mental health or sbstance se disorder benefits, check N/A here and skip to Part III of this checklist. Also, the plan may be exempt from the mental health parity provisions nder the small employer (50 employees or fewer) exception or the increased cost exception. (To be eligible for the increased cost exception, the plan mst have filed a notice with EBSA and notified participants and beneficiaries.) Unless a plan is exempt as previosly described, the reqirements of MHPAEA generally apply to both grandfathered and non-grandfathered grop health plans 13, as defined nder the Affordable Care Act. Note that the Department of Health and Hman Services final rle regarding essential health benefits (EHB) reqires health insrance issers offering non-grandfathered health insrance coverage in the small grop market throgh an Affordable Health Insrance Exchange (Marketplace) or otside of a Marketplace to comply with MHPAEA in order to satisfy the reqirement to provide EHB. In addition, nder MHPAEA, if a plan or isser provides mental health or sbstance se disorder benefits in any classification described in the MHPAEA final reglation, mental health or sbstance se disorder benefits mst be provided in every classification in which medical/srgical benefits are provided. Under the Affordable Care Act, PHSA section 2713, non-grandfathered grop health plans are reqired to provide certain preventive services with no cost-sharing, which incldes, among YES NO N/A 13 Mental health and sbstance se disorder benefits are defined nder the terms of the plan, in accordance with applicable Federal and State law. Any condition or disorder defined by the plan as being or as not being a mental health condition or sbstance se disorder mst be defined in a manner consistent with generally recognized independent standards of crrent medical practice (e.g., the most crrent version of the DSM or ICD or State gidelines). 77

17 other things, alcohol misse screening and conseling, depression screening, and tobacco se screening. However, the Departments clarified that nothing in MHPAEA reqires a grop health plan that provides mental health or sbstance se disorder benefits only to the extent reqired nder PHSA section 2713, to provide additional mental health or sbstance se disorder benefits in any classification. 14 If the plan is exempt, check N/A here and skip to Part III of this checklist.... SECTION A. Lifetime and Annal Limits Qestion 21 Does the plan comply with the mental health parity reqirements regarding lifetime dollar limits on mental health/sbstance se disorder benefits?... A plan generally may not impose a lifetime dollar limit on mental health/ sbstance se disorder benefits that is lower than the lifetime dollar limit imposed on medical/ srgical benefits. See 29 CFR (b). (Only limits on what the plan wold pay are taken into accont, as contrasted with limits on what an individal may be charged.) Note: These provisions are affected by section 2711 of the Pblic Health Service Act, as amended by the Patient Protection and Affordable Care Act. Specifically, PHS Act section 2711 generally prohibits lifetime and annal dollar limits on essential health benefits (EHB), which incldes mental health and sbstance se disorder services. Accordingly, for mental health and sbstance se disorder benefits that are EHB, plans cannot impose lifetime limits. For mental health and sbstance se disorder benefits that are not EHB, parity reqirements regarding aggregate lifetime dollar limits apply. (For information regarding the Affordable Care Act, please visit or Website at dol.gov/ebsa/healthreform). Qestion 22 Does the plan comply with the mental health parity reqirements regarding annal dollar limits on mental health/sbstance se disorder benefits?... A plan generally may not impose an annal dollar limit on mental health/ sbstance se disorder benefits that is lower than the annal dollar limit imposed on medical/srgical benefits. See 29 CFR (b). (Again, only limits on what the plan wold pay are taken into accont, as contrasted with limits on what an individal may be charged.) Tip: There is a different rle for cmlative limits other than aggregate lifetime or annal dollar limits discssed later in this checklist at Qestion 26. A plan may impose annal ot-of-pocket dollar limits on participants and beneficiaries if done in accordance with the rle regarding cmlative limits. 14 See 29 CFR (e)(3)(i) 78

18 Note: These provisions are affected by section 2711 of the Pblic Health Service Act, as amended by the Patient Protection and Affordable Care Act. Specifically, PHS Act section 2711 generally prohibits annal dollar limits on essential health benefits, which incldes mental health and sbstance se disorder services. Accordingly, the parity reqirements regarding annal dollar limits only apply to the provision of mental health and sbstance se disorder benefits that are not Essential Health Benefits. Note also that for plan years beginning in 2015, the annal limitation on an individal s maximm ot-of-pocket (MOOP) costs in effect nder ACA is $6,600 for self-only coverage and $13,200 for coverage other than self-only coverage. See ACA Implementation FAQ Part XXI at dol.gov/ebsa/faqs/faq-aca21. html. (For information regarding the Affordable Care Act, please visit or Website at dol.gov/ebsa/healthreform). SECTION B. Financial Reqirements and Qantitative Treatment Limitations Qestion 23 Does the plan comply with the mental health parity reqirements for parity in financial reqirements and qantitative treatment limitations?... A plan may not impose a financial reqirement or qantitative treatment limitation applicable to mental health/sbstance se disorder benefits in any classification that is more restrictive than the predominant financial reqirement or qantitative treatment limitation of that type that is applied to sbstantially all medical/srgical benefits in the same classification. See 29 CFR (c)(2). v v Types of financial reqirements inclde dedctibles, copayments, coinsrance, and ot-of-pocket maximms. See 29 CFR (c)(1)(ii). Types of qantitative treatment limitations inclde annal, episode, and lifetime day and visit limits, for example, nmber of treatments, visits, or days of coverage. See 29 CFR (c)(1)(ii). The six classifications* of benefits are: 1) inpatient, in-network; 2) inpatient, ot-of-network; 3) otpatient, in-network; 4) otpatient, ot-of-network; 5) emergency care; and 6) prescription drgs. See 29 CFR (c)(2)(ii). Under the plan, any financial reqirement or qantitative treatment limitation that applies to mental health/sbstance se disorder benefits within a particlar classification cannot be more restrictive than the predominant reqirement or limitation that applies to sbstantially all medical/srgical benefits within the same classification. See 29 CFR (c)(2). *See page 81 for special rles related to classifications. 79

19 Detailed steps for applying these rles are set forth below: To determine compliance, each type of financial reqirement or qantitative treatment limitation within a coverage nit 15 mst be analyzed separately within each classification. See 29 CFR (c)(2)(i). If a plan applies different levels of a financial reqirement or qantitative treatment limitation to different coverage nits in a classification of medical/srgical benefits (for example, a $15 copayment for self-only and a $20 copayment for family coverage), the predominant level is determined separately for each coverage nit. See 29 CFR (c)(3)(ii). Step One: First determine if a particlar type of financial reqirement or qantitative treatment limitation applies to sbstantially all medical/srgical benefits in the relevant classification of benefits. v Generally, a financial reqirement or qantitative treatment limitation is considered to apply to sbstantially all medical/srgical benefits if it applies to at least two-thirds of the medical/srgical benefits in the classification. See 29 CFR (c)(3)(i)(A). This two-thirds calclation is generally based on the dollar amont of plan payments expected to be paid for the plan year. See 29 CFR (c)(3)(i)(C). (Any reasonable method can be sed for this calclation. See 29 CFR (c)(3)(i)(E).) Step Two: If the type of financial reqirement or qantitative treatment limitation applies to at least two-thirds of medical/srgical benefits in that classification, then determine the predominant level of that type of financial reqirement or qantitative treatment limitation that applies to medical/ srgical benefits sbject to that type of financial reqirement or qantitative treatment limitation in that classification of benefits. (Note: If the type of financial reqirement or qantitative treatment limitation does not apply to at least two-thirds of medical/srgical benefits in that classification, it cannot apply to mental health/sbstance se disorder benefits in that classification.) v Generally, the predominant level will apply to more than one-half of the medical/srgical benefits in that classification sbject to the financial reqirement or qantitative treatment limitation. See 29 CFR (c)(3)(i)(B)(1). If there is no single level that applies to more than one-half of medical/srgical benefits in the classification, the plan can combine levels ntil the combination of levels applies to more than one-half of medical/srgical benefits sbject to the financial reqirement or qantitative treatment limitation in the classification. The least restrictive level within the combination is considered the predominant level. 16 See 29 CFR (c)(3)(i)(B)(2). 15 Coverage nit refers to the way in which a plan grops individals for prposes of determining benefits, or premims or contribtions, for example, self-only, family, and employee pls spose. See 29 CFR (c)(1)(iv). 16 For a simpler method of compliance, a plan may treat the least restrictive level of financial reqirement or treatment limitation applied to medical/srgical benefits as predominant. 80

20 *Note: Special rles related to classifications 1. Special rle for otpatient sb-classifications: For prposes of determining parity for otpatient benefits (in-network and ot-of network), a plan or isser may divide its benefits frnished on an otpatient basis into two sb-classifications: (1) office visits and (2) all other otpatient items and services, for prposes of applying the financial reqirement and treatment limitation rles. After the sb-classifications are established, the plan or isser may not impose any financial reqirement or qantitative treatment limitation on mental health/sbstance se disorder benefits in any sb-classification (i.e., office visits or non-office visits) that is more restrictive than the predominant financial reqirement or treatment limitation that applies to sbstantially all medical/srgical benefits in the sb-classification sing the methodology set forth in the final rles. Other than as explicitly permitted nder the final rles, sb-classifications are not permitted when applying the financial reqirement and treatment limitation rles nder MHPAEA. Accordingly, separate sb-classifications for generalists and specialists are not permitted. (See Qestion 24 for more information regarding specialists and generalists.) 2. Special rle for prescription drg benefits: There is a special rle for mlti-tiered prescription drg benefits. A plan complies with the mental health parity provisions if the plan applies different levels of financial reqirements to different tiers of prescription drg benefits based on reasonable factors and withot regard to whether a drg is generally prescribed for medical/srgical or mental health/sbstance se disorder benefits. Reasonable factors inclde cost, efficacy, generic verss brand name, and mail order verss pharmacy pick-p. See 29 CFR (c)(3) (iii). 3. Special rle for mltiple network tiers: There is a special rle for mltiple network tiers. If a plan provides benefits throgh mltiple tiers of in-network providers (sch as in-network preferred and in-network participating providers), the plan may divide its benefits frnished on an in-network basis into sb-classifications that reflect network tiers, if the tiering is based on reasonable factors (sch as qality, performance, and market standards) and withot regard to whether a provider provides services with respect to medical/srgical benefits or mental health or sbstance se disorder benefits. After the sb-classifications are established, the plan or isser may not impose any financial reqirement or treatment limitation on mental health or sbstance se disorder benefits in any sb-classification that is more restrictive than the predominant financial reqirement or treatment limitation that applies to sbstantially all medical/ srgical benefits in the sb-classification. 81