Health Benefits Coverage Under Federal Law...

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1 covers Labor Compliance 2014mx.pdf 1 11/19/2014 2:05:01 PM Compliance Assistance Gide Health Benefits Coverage Under Federal Law... The Affordable Care Act Health Insrance Portability and Accontability Act C Genetic Information Nondiscrimination Act M Y CM Mental Health Parity Provisions MY CY CMY K Newborns' and Mothers' Health Protection Act Women's Health and Cancer Rights Act November 2014 Employee Benefits Secrity Administration U.S. Department of Labor

2 This pblication has been developed by the U.S. Department of Labor, Employee Benefits Secrity Administration (EBSA). To view this and other EBSA pblications, visit the agency s Website at dol.gov/ebsa. To order pblications or to reqest assistance from a benefits advisor, contact s electronically at askebsa.dol.gov. Or call toll free This material is available in alternative format to persons with disabilities pon reqest: Voice phone: (202) TDD: (202) This pblication constittes a small entity compliance gide for prposes of the Small Bsiness Reglatory Enforcement Fairness Act of 1996.

3 covers Labor Compliance 2014mx.pdf 2 11/19/2014 2:05:11 PM Compliance Assistance Gide Health Benefits Coverage Under Federal Law... The Affordable Care Act C M Y CM This pblication has been developed by the U.S. Department of Labor, Employee Benefits Secrity Administration (EBSA). To view this and other EBSA pblications, visit the agency s Website at dol.gov/ebsa. To order pblications or to reqest assistance from a benefits advisor, contact s electronically at askebsa.dol.gov. Or call toll free MY CY CMY K This material is available in alternative format to persons with disabilities pon reqest: Voice phone: (202) TDD: (202) Health Insrance Portability and Accontability Act Genetic Information Nondiscrimination Act Mental Health Parity Provisions Newborns' and Mothers' Health Protection Act Women's Health and Cancer Rights Act This pblication constittes a small entity compliance gide for prposes of the Small Bsiness Reglatory Enforcement Fairness Act of Employee Benefits Secrity Administration U.S. Department of Labor

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5 Table of Contents Introdction... The Affordable Care Act... HIPAA Portability Provisions... Special Enrollment... Nondiscrimination Reqirements... HIPAA and the Affordable Care Act Wellness Program Reqirements... The Genetic Information Nondiscrimination Act... Mental Health Parity Provisions... The Newborns and Mothers Health Protection Act... The Women s Health and Cancer Rights Act... Applying and Enforcing Laws in Part 7 of ERISA Appendices Appendix A: Self-Compliance Tools... Appendix B: Chart of Reqired Notices... Appendix C: Model Notices

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7 Introdction Health Benefits Coverage Under Federal Law addresses the following laws that can affect the health benefits coverage provided by grop health plans: The Patient Protection and Affordable Care Act (Affordable Care Act) The Health Insrance Portability and Accontability Act of 1996 (HIPAA) (portability and nondiscrimination provisions only) The Mental Health Parity and Addiction Eqity Act (MHPAEA) and the Mental Health Parity Act (MHPA) (Mental Health Parity Provisions) The Newborns and Mothers Health Protection Act of 1996 (the Newborns Act) The Women s Health and Cancer Rights Act of 1998 (WHCRA) The Genetic Information Nondiscrimination Act of 2008 (GINA) These health care laws are inclded in Part 7 of Title I of the Employee Retirement Income Secrity Act of 1974 (Part 7 of ERISA). Also discssed in this booklet are provisions of the Children s Health Insrance Program Reathorization Act (CHIPRA) related to special enrollment rights, which are inclded as part of the HIPAA Special Enrollment section on page 19. The rles described in the following pages generally apply to grop health plans and grop health insrance issers (i.e., insrance companies). References in this booklet are generally limited to grop health plans or plans for convenience. In addition, the booklet will help employers, plan sponsors, plan administrators, third-party administrators, and other service providers to comply with Part 7 of ERISA. The reqirements nder Part 7 of ERISA generally apply to grop health plans with two or more participants who are crrent employees. 1 However, if the coverage is insred, parallel provisions in the Pblic Health Service Act apply to health insrance coverage offered in connection with grop health plans with as few as one employee who is a crrent participant nder the plan. In addition, 1 The Mental Health Parity and Addiction Eqity Act as inclded in Part 7 of ERISA exempts grop health plans of a small employer with 50 or fewer employees from its reqirements. However, insred grop health plans in the small grop market are reqired to comply with the reqirements of the Act in order to satisfy the essential health benefits reqirements nder the Affordable Care Act. 5

8 the reqirements of Part 7 of ERISA do not apply to excepted benefits, sch as certain dental and vision coverage*. The laws contained in Part 7 of ERISA (which is administered by the U.S. Department of Labor) generally also appear in the Internal Revene Code (the Code), and the Pblic Health Service Act (PHSA). The Department of the Treasry and the Internal Revene Service administer the reqirements nder the Code, and the U.S. Department of Health and Hman Services (HHS) administers the reqirements nder the PHSA. For ease of se, Health Benefits Coverage Under Federal Law is divided into for sections: The first section incldes general descriptions of the health care laws mentioned above and freqently asked qestions. Following are self-compliance tools that can help to determine a plan s compliance with these laws. They inclde compliance tips that relate to some common mistakes. (Note: please check the Website at dol.gov/ebsa/ healthlawschecksheets.html for pdates to the self-compliance tools.) Next, a chart smmarizes the notices a plan mst provide. Finally, the last section incldes model notices providing langage that may be sed to comply with the varios notice reqirements. While the booklet does not cover all the specifics of these laws, it does assist those involved in operating a grop health plan to nderstand the laws and related responsibilities. It provides an informal explanation of the stattes and the most recent reglations and interpretations. The information is presented as general gidance, however, and shold not be considered legal advice. In addition, some of the provisions discssed involve isses for which the rles have not yet been finalized as of the date of pblication of this booklet. The proposed rles are noted. Periodically check the Department of Labor s Website (dol.gov/ebsa) nder Laws & Reglations for pblication of final rles. *See the Applying and Enforcing Laws in Part 7 of ERISA Section at page 57 of the Gide for a frther discssion. 6

9 Some general notes: As discssed later, States can change some of these Federal rles if the State law is more protective of individals (i.e., imposes stricter obligations on health insrance issers). If the plan provides benefits throgh an insrance policy or health maintenance organization (HMO), yo also may contact yor State s insrance department. Visit the National Association of Insrance Commissioners Website at naic.org for contact information. If yo have qestions not specifically addressed in this booklet, please contact the Employee Benefits Secrity Administration (EBSA) regional office nearest yo. A list of these offices is on the agency s Website at dol. gov/ebsa (view Abot EBSA ). Or yo may contact EBSA electronically at askebsa.dol.gov or call toll free

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11 The Affordable Care Act The Patient Protection and Affordable Care Act (Affordable Care Act) was signed into law on March 23, The Affordable Care Act added certain market reform provisions to ERISA, making those provisions applicable to employment-based grop health plans. These provisions provide additional protections for benefits nder employment-based grop health plans. They inclde extending dependent coverage to age 26; prohibiting preexisting condition exclsions for all individals and prohibiting the imposition of lifetime and annal limits on essential health benefits. As of 2014, most of the Affordable Care Act protections are now in effect. The Departments of Labor, Health and Hman Services, and the Treasry (Departments) were tasked with issing gidance for the market reform provisions. The Departments contine to work with employers, issers, States, providers and other stakeholders to help them come into compliance with the law and are working with families and individals to help them nderstand the law and benefit from it, as intended. Under the Affordable Care Act, plans can make some rotine changes and generally keep the coverage nder their plan the same as it was on March 23, These grandfathered health plans are reqired to comply with some bt not all of the market reform provisions nder ERISA. What is grandfathered stats and how does a grandfathered plan lose its stats? Generally, grandfathered plans are plans that were in existence, and in which at least one individal was enrolled, on March 23, Grandfathered health plans are exempt from many bt not all Affordable Care Act market reforms. Grandfathered plans lose their stats if the plan makes one of the following six changes: 1) Elimination of all or sbstantially all benefits to diagnose or treat a particlar condition. 2) Increase in a percentage cost-sharing reqirement (e.g., raising an individal s coinsrance reqirement from 20% to 25%). 3) Increase in a dedctible or ot-of-pocket maximm by an amont that exceeds medical inflation pls 15 percentage points. 4) Increase in a copayment by an amont that exceeds medical inflation pls 15 percentage points (or, if greater, $5 pls medical inflation). 5) Decrease in an employer s contribtion rate towards the cost of coverage by more than 5 percentage points. 9

12 6) Imposition of annal limits on the dollar vale of all benefits below specified amonts. Additionally, plans mst inclde a statement in any plan materials provided to a participant or beneficiary describing the benefits provided nder the plan, that the plan or coverage believes it is a grandfathered health plan and it mst provide contact information for qestions and complaints. Which provisions of the Affordable Care Act apply to a grandfathered health plan? Grandfathered health plans are exempt from many, bt not all Affordable Care Act market reforms. Some of the new provisions applicable to grandfathered plans inclde: prohibition on preexisting condition exclsions prohibition on excessive waiting periods prohibition on lifetime/restricted annal limits prohibition on rescissions extension of dependent coverage smmary of benefits and coverage and niform glossary Some of the new provisions not applicable to grandfathered plans inclde: coverage of preventive services internal claims and appeals and external review patient protections When do the provisions in the Affordable Care Act become applicable? The following provisions became effective for plan years beginning on or after September 23, prohibition on preexisting condition exclsions - only for individals nder age 19 10

13 prohibition on lifetime limits (and restrictions on annal limits) prohibition on rescissions coverage of preventive services extension of dependent coverage internal claims and appeals and external review patient protections The Smmary of Benefits and Coverage and Uniform Glossary reqirement became effective as of September 23, Other provisions became effective for plan years beginning on or after Janary 1, prohibition on preexisting condition exclsions - for all individals wellness programs prohibition on excessive waiting periods prohibition on annal limits Can plans reqire dependent children to be fll-time stdents in order to receive coverage to the age of 26? No. Plans that offer dependent coverage for children are reqired to make the coverage available ntil a child reaches the age of 26. Plans and issers that offer dependent coverage of children mst offer coverage to enrollees adlt children ntil age 26, even if the yong adlt no longer lives with his or her parents, is not a dependent on a parent s tax retrn, or is no longer a stdent. This provision applies to all grop health plans regardless of grandfather stats and became effective for plan years beginning on or after September 23, Can plans impose preexisting condition exclsions on new enrollees? No. Grop health plans are prohibited from imposing any preexisting condition exclsion. This prohibition generally is effective for plan years beginning on or after Janary 1, 2014, bt for enrollees who are nder 19 years of age, this prohibition became effective for plan years beginning on or after September 23, This provision applies to all grop health plans regardless of grandfathered stats. 11

14 Can plans place lifetime or annal limits on the dollar vale of essential health benefits? Generally grop health plans are prohibited from offering coverage that establishes any lifetime or annal limits on the dollar vale of essential health benefits. This prohibition became effective for plan years beginning on or after September 23, 2010 for lifetime limits and Janary 1, 2014 for annal limits. For more information regarding what benefits are considered essential health benefits, visit HealthCare.gov. This provision applies to all grop health plans regardless of grandfathered stats. Are plans prohibited from rescinding grop health plan coverage? In general, a rescission is a retroactive cancellation of coverage. A grop health plan or a health insrance isser can only rescind coverage in the case of frad or an intentional misrepresentation of a material fact, regardless of whether the coverage is insred or self-insred, or whether the rescission applies to an entire grop or only to an individal within the grop. Plans and issers mst provide at least 30 days advance written notice to each participant who wold be affected by the rescission. The prohibition against rescissions became applicable for plan years beginning on or after September 23, 2010 and applies to all grop health plans regardless of grandfathered stats. Are plans reqired to provide preventive services? Grop health plans mst provide benefits for certain recommended preventive services and generally may not impose any cost-sharing for sch services. The recommended services, inclding immnizations and colonoscopies, are set forth by the United States Preventive Services Task Force (USPSTF), the Health Resorces and Services Administration (HRSA) and the Advisory Committee on Immnization Practices (ACIP) of the Centers for Disease Control and Prevention. A complete list of recommendations and gidelines that specify the services that are reqired to be covered can be fond at HealthCare.gov/ center/reglations/prevention.html. The preventive services provision became applicable for plan years beginning on or after September 23, 2010, and does not apply to grandfathered plans. My plan reqires participants to designate, among others, a primary care provider. Is my plan reqired to comply with certain reqirements related to this designation? If a grop health plan reqires the participant to choose a participating primary care provider, the plan or isser mst allow the participant to choose any participating primary care provider who is available to accept the participant. With respect to a child, the plan or isser mst allow the designation of a 12

15 pediatrician as a child s primary care provider if the provider participates in the network of the plan or isser. Frthermore, plans or issers may not reqire athorization or referral for a female participant who seeks coverage for OB/ GYN care provided by an OB/GYN specialist. The plan mst provide a notice informing the participants of the terms of the plan or health insrance coverage regarding designation of a primary care provider. This provision became applicable for plan years beginning on or after September 23, 2010, and does not apply to grandfathered health plans. Can plans contine to limit payments for ot-of-network emergency room services? A grop health plan that provides emergency services benefits mst cover emergency services withot preathorization, even if the hospital or provider is ot-of-network. If the emergency services are provided ot-of-network, special rles related to cost-sharing reqirements apply. Copayment amont or coinsrance rates cannot exceed the cost-sharing reqirements that wold be imposed if the services were provided in-network. Additionally, any other costsharing reqirement, sch as a dedctible or ot-of-pocket maximm, can only be imposed with respect to ot-of-network emergency services if the cost-sharing reqirement generally applies to ot-of-network benefits. This provision became applicable for plan years beginning on or after September 23, 2010, and does not apply to grandfathered health plans. Are all employment-based wellness programs sbject to Affordable Care Act reqirements? No. Many employers offer a wide range of programs to promote health and prevent disease. For example, some employers may choose to provide or sbsidize healthier food choices in the employee cafeteria, provide pedometers to encorage employee walking and exercise, pay for gym memberships, or ban smoking on employer facilities and campses. A wellness program is sbject to the Affordable Care Act and HIPAA nondiscrimination rles only if it is, or is part of, a grop health plan. If an employer operates a wellness program separate from its grop health plan(s), the program may be sbject to other Federal or State nondiscrimination laws, bt it is generally not sbject to the HIPAA nondiscrimination reglations. For a detailed discssion of the Affordable Care Act and HIPAA nondiscrimination reqirements that may apply to wellness programs offered in connection with employment-based grop health plan coverage, see page 27. These provisions apply to both grandfathered and non-grandfathered plans and became applicable for plan years beginning on or after Janary 1,

16 What reqirements apply nder the Affordable Care Act regarding the claims and appeals processes that mst be made available nder a grop health plan? All grop health plans mst maintain internal claims and appeals processes set forth in the Department of Labor Claims Procedre rles. Additional protections were added to ensre that participants have access to an effective appeals process. The scope of adverse benefit determinations eligible for internal claims and appeals now incldes a rescission of coverage. If an initial adverse benefit determination is an rgent care claim, the claimant mst be notified of the benefit determination no later than 72 hors after the receipt of the claim. If the plan denies the claim after the internal appeal, the Affordable Care Act reqires participants be given the opportnity to seek external review. Plans mst implement an effective review process that meets the minimm reqirements set forth in the reglations. The internal claims and appeals and external review provisions do not apply to grandfathered plans and are applicable for plan years beginning on or after September 23, What is the Smmary of Benefits and Coverage and when mst it be provided? Plans mst provide a Smmary of Benefits and Coverage (SBC) that accrately describes the benefits and coverage nder the applicable plan. The SBC is a niform template that ses clear, plain langage to smmarize key featres of the plan, sch as covered benefits, cost-sharing provisions and coverage limitations. Plans and issers mst provide the SBC to participants and beneficiaries at certain times (inclding with written application materials, at renewal, pon special enrollment and pon reqest). This provision became applicable, generally, for plan years beginning on or after September 23, 2012, and applies to all grop health plans regardless of grandfathered stats. Can employers or plans reqire participants and beneficiaries to be in a waiting period before allowing them to enroll in a grop health plan? Any waiting period that exceeds 90 days is prohibited. A waiting period is defined as the period of time that mst pass before coverage for an employee or dependent who is otherwise eligible to enroll nder the terms of the plan can become effective. Eligibility conditions that are based solely on the lapse of a time period are permissible for no more than 90 days. This provision became applicable for plan years beginning on or after Janary 1, 2014, and applies to all grop health plans regardless of grandfather stats. 14

17 What is the Marketplace and where can I learn more abot it? The Marketplace offers one-stop shopping for employees to find and compare private health insrance options that meet certain Federal reqirements. It simplifies the search for individal health insrance by gathering all of the health plan options into one Website and presenting the price and benefit information in simple terms. By prchasing insrance in the Marketplace, some employees may be eligible for a tax credit that lowers monthly premims or ot-of-pocket expenses. Persons eligible for COBRA de to a loss of employer-sponsored coverage may choose to prchase less expensive coverage from the Marketplace and may also qalify for the tax credits. Employees can also apply for Federal health coverage programs sch as Medicaid and the Children s Health Insrance Program throgh the Marketplace. For more information on the Marketplace, visit HealthCare.gov. Where can I get more information abot the Affordable Care Act? For more detailed information regarding the reqirements nder the Affordable Care Act, visit the Employee Benefits Secrity Administration s Affordable Care Act Web page at dol.gov/ebsa/healthreform or contact

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19 HIPAA The Health Insrance Portability and Accontability Act of 1996 (HIPAA) incldes provisions of Federal law governing health coverage portability, health information privacy, administrative simplification, medical savings acconts, and longterm care insrance. The responsibility of the Department of Labor and the sbject of this segment of the booklet are the law s portability and nondiscrimination reqirements. HIPAA s 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); Prohibit discrimination in grop health plan eligibility, benefits, and premims based on specific health factors; and While HIPAA previosly provided for limits with respect to preexisting condition exclsions, new protections nder the Affordable Care Act now prohibit 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 and individal notice of period of preexisting condition exclsion. Plans are also no longer reqired to isse certificates of creditable coverage after December 31, These amendments were made becase plans are prohibited from imposing preexisting condition exclsions for plan years beginning on or after Janary 1,

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21 Special Enrollment Grop health plans are reqired to provide special enrollment periods dring which individals who previosly declined health coverage for themselves and their dependents may be allowed to enroll (regardless of any open enrollment period). In addition to HIPAA special enrollment rights, the Children s Health Insrance Program Reathorization Act (CHIPRA) added additional special enrollment rights nder ERISA. Rights related to CHIPRA special enrollment are discssed in this section. Special enrollment rights can occr when: An individal loses eligibility for coverage nder a grop health plan or other health insrance coverage (sch as an employee and his/her dependents loss of coverage nder the spose s plan) or when an employer terminates contribtions toward health coverage; An individal becomes a new dependent throgh marriage, birth, adoption, or being placed for adoption; and An individal loses coverage nder a State Children s Health Insrance Program (CHIP) or Medicaid, or becomes eligible to receive premim assistance nder those programs for grop health plan coverage. Employees mst receive a description of special enrollment rights on or before the date they are first offered the opportnity to enroll in the grop health plan (see model notice on page 138). 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 notice (referred to as the Employer CHIP Notice) to all employees to inform them of possible opportnities in the state in which they reside (for information on a model Employer CHIP notice, see page 20). Some individals losing coverage nder an employment-based grop health plan may want to consider enrolling for coverage in the Marketplace. For more information on the Marketplace, visit HealthCare.gov. 19

22 Can the special enrollment notice be provided in the Smmary Plan Description (SPD)? Yes, if the SPD is provided to the employee at or before the time the employee is initially offered the opportnity to enroll in the plan. If the SPD is provided at a later time, the special enrollment notice shold be provided separately (for example, as part of the application for coverage). How can the employer notice regarding premim assistance nder Medicaid or CHIP (the Employer CHIP Notice) be provided? Employers that maintain a grop health plan are reqired to provide the Employer CHIP Notice if they provide medical care in a State that operates a Medicaid or CHIP premim assistance program. This notice may be provided with the SPD, enrollment packets or open season materials as long as these materials are provided no later than the date explained below, are provided to all employees, and are provided in accordance with the Department of Labor s disclosre rles. The notice mst be provided annally. A model Employer CHIP Notice is available at dol.gov/ebsa/chipmodelnotice.doc. The model notice incldes State contact information for States that provide Medicaid or CHIP premim assistance programs. This contact information will be pdated periodically, therefore, be sre to check the EBSA Website for the most recent version. Upon loss of eligibility for health coverage or termination of employer contribtions for health coverage, what are a plan s obligations to offer special enrollment? When an employee or dependent loses eligibility for coverage nder any grop health plan or health insrance coverage, or if employer contribtions toward grop health plan coverage cease, a special enrollment opportnity may be triggered. The employee or dependent mst have had health coverage when the grop health plan benefit package was previosly declined. If the other coverage was COBRA contination coverage, special enrollment need not be made available ntil the COBRA coverage is exhasted. For example, if an employee s spose declined coverage when previosly offered de to coverage nder her own employer s plan, she and the employee mst be offered a special enrollment opportnity when her coverage ceases nder that plan or her employer terminates contribtions to that plan. 20

23 Another example is if an employer offering two benefit package options, an HMO and an indemnity option, eliminates coverage nder the indemnity option. Employees, sposes, and other dependents mst be offered a special enrollment opportnity in the HMO option (and may also be eligible to special enroll in any other plan for which they are otherwise eligible, sch as any plan offered by the spose s employer). What are examples of a loss of eligibility for coverage? Some examples of events that case an individal to lose eligibility for health coverage (there are other reasons as well): Divorce or legal separation; A dependent is no longer considered a dependent nder the plan; Death of the employee covered by the plan; Termination of employment; Redction in the nmber of hors of employment; The plan decides to no longer offer any benefits to a class of similarly sitated individals; or An individal in an HMO or other arrangement no longer resides, lives, or works in the service area. If an employer terminates all contribtions to a grop health plan, bt individals have the option to contine coverage and pay 100 percent of the cost themselves, wold these individals still have a special enrollment right becase the employer has terminated contribtions? Yes. If all employer contribtions have ended, individals covered nder the plan wold have a special enrollment right, regardless of their option to contine coverage nder the plan by paying the fll cost of coverage. If a plan has to offer a special enrollment period pon loss of eligibility or termination of employer contribtions, how long mst the special enrollment period rn? The plan has to provide at least 30 days for the employee or dependent to reqest coverage after the loss of other coverage or termination of employer contribtions. If an individal does reqest coverage within the 30-day period, the plan mst make the coverage effective no later than the first day of the first calendar month beginning after the date the plan receives the enrollment reqest. 21

24 Upon marriage, birth, adoption, or placement for adoption, what are a plan s obligations to offer special enrollment? Employees, as well as their sposes and dependents, may have special enrollment rights after a marriage, birth, adoption, or placement for adoption. In addition, new sposes and new dependents of retirees in a grop health plan also may have special enrollment rights after these events. The plan has to provide at least 30 days for the employee or dependents to reqest coverage after the occrrence of one of these events. If the event was a marriage, the coverage is reqired to be effective no later than the first day of the first calendar month beginning after the date the completed reqest for enrollment is received by the plan. In the case of birth, adoption, or placement for adoption, coverage is reqired to be effective no later than the date of the event. If an employee or dependent loses coverage nder CHIP or Medicaid, or becomes eligible for State premim assistance nder those programs, what are a plan s obligations to offer special enrollment? A special enrollment opportnity is triggered if the employee or dependent who is otherwise eligible, bt not enrolled in, a grop health plan: loses eligibility for coverage nder a State Medicaid or CHIP program, or becomes eligible for State premim assistance nder a Medicaid or CHIP program. The plan mst provide at least 60 days for the employee or dependent to reqest coverage after the employee or dependent loses eligibility for coverage or becomes eligible for premim assistance. Can States modify HIPAA s special enrollment reqirement? Yes, in certain circmstances. States may reqire additional special enrollment periods with respect to insred grop health plans. State laws related to health insrance issers generally contine to apply except to the extent that sch State law prevents the application of a reqirement of Part 7 of ERISA. Therefore, if health coverage is offered throgh an HMO or an insrance policy, check with yor State insrance department for more information on that State s insrance laws. 22

25 Nondiscrimination Reqirements Under HIPAA, individals may not be denied eligibility or contined eligibility to enroll in a grop health plan based on any health factors they may have. In addition, an individal may not be charged more for coverage than any similarly sitated individal is being charged based on any health factor. Note: Compliance with HIPAA s nondiscrimination provisions does not in any way reflect compliance with any other provision of ERISA (inclding COBRA and ERISA s fidciary provisions). Nor does it reflect compliance with other State or Federal laws (sch as the Americans with Disabilities Act). What are the health factors? They are: health stats; medical condition, inclding both physical and mental illnesses; claims experience; receipt of health care; medical history; genetic information; evidence of insrability; and disability. The term evidence of insrability incldes conditions arising from acts of domestic violence, as well as participation in activities sch as motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing, and other similar activities. Can a grop health plan reqire an individal to pass a physical examination in order to be eligible to enroll in the plan? No. A grop health plan may not reqire an individal to pass a physical exam for enrollment, even if the individal is a late enrollee. Can a plan reqire an individal to complete a health care qestionnaire in order to enroll? Yes, provided that the qestionnaire does not ask for genetic information (inclding family medical history) and the health information is not sed to deny, restrict, or delay eligibility or benefits, or to determine individal premims. 23

26 Can plans exclde or limit benefits for certain conditions or treatments? Grop health plans may exclde coverage for a specific disease, limit or exclde benefits for certain types of treatments or drgs, or limit or exclde benefits based on a determination that the benefits are experimental or medically nnecessary bt only if the benefit restriction applies niformly to all similarly sitated individals and is not directed at individal participants or beneficiaries based on a health factor they may have. (Plan amendments that apply to all individals in a grop of similarly sitated individals and that are effective no earlier than the first day of the next plan year after the amendment is adopted are not considered to be directed at individal participants and beneficiaries.) Whether any plan provision or practice with respect to benefits complies with this rle nder HIPAA does not affect whether the provision or practice is permitted nder other laws inclding the Affordable Care Act. For example, the Affordable Care Act incldes reqirements related to coverage of certain preventive services. Can a plan deny benefits otherwise provided for the treatment of an injry based on the sorce of that injry? If the injry reslts from a medical condition or an act of domestic violence, a plan may not deny benefits for the injry if it is an injry the plan wold otherwise cover. For example, a plan may not exclde coverage for self-inflicted injries (or injries reslted from attempted sicide) if the individal s injries are otherwise covered by the plan and if the injries are the reslt of a medical condition (sch as depression). However, a plan may exclde coverage for injries that do not reslt from a medical condition or domestic violence, sch as injries sstained in high-risk activities (for example, bngee jmping). Bt the plan cold not exclde an individal from enrollment for coverage becase the individal participated in bngee jmping. Can a plan charge individals with histories of high claims more than similarly sitated individals based on their claims experience? No. Grop health plans cannot charge an individal more for coverage than other similarly sitated individals based on any health factor. How are grops of similarly sitated individals determined? Distinctions among grops of similarly sitated participants in a health plan mst be based on bona-fide employment-based classifications consistent with the 24

27 employer s sal bsiness practice. Distinctions cannot be based on any of the health factors noted earlier. For example, part-time and fll-time employees, employees working in different geographic locations, and employees with different dates of hire or lengths of service can be treated as distinct grops of similarly sitated individals, with different eligibility provisions, different benefit restrictions, or different costs, provided the distinction is consistent with the employer s sal bsiness practice. In addition, a plan generally may treat participants and beneficiaries as two separate grops of similarly sitated individals. The plan also may distingish between beneficiaries based on, for example, their relationship to the plan participant (sch as spose or dependent child) or based on the age or stdent stats of dependent children. In any case, a plan cannot create or modify a classification directed at individal participants or beneficiaries based on one or more of the health factors. Is it permissible for a health insrance isser to charge a higher premim to one grop health plan (or employer) that covers individals, some of whom have adverse health factors, than it charges another grop health plan comprised of fewer individals with adverse health factors? Yes. In fact, HIPAA does not restrict a health insrance isser from charging a higher rate to one grop health plan (or employer) over another. An isser may take health factors of individals into accont when establishing blended, aggregate rates for grop health plans (or employers). This may reslt in one health plan (or employer) being charged a higher premim than another for the same coverage throgh the same isser. Whether any plan provision or practice with respect to benefits complies with this rle nder HIPAA does not affect whether the provision or practice is permitted nder the Affordable Care Act (inclding the reqirements related to commnity rating administered by HHS). Can a health insrance isser charge an employer different premims for each individal within a grop of similarly sitated individals based on each individal s health stats? No. Issers may not charge or qote an employer or grop health plan separate rates that vary for individals (commonly referred to as list billing ) based on any of the health factors. HIPAA does not prevent issers from taking the crrent health stats of each individal into accont when establishing a blended, aggregate rate for 25

28 providing coverage to the employment-based grop overall. (However, the Affordable Care Act generally prohibits this practice with respect to small grop insrance plans.) (Note: grop health plans cannot adjst premim or contribtion rates based on genetic information of one or more individals in the grop. For more information, refer to the section on GINA on page 33). Also, nder the Affordable Care Act, the isser may then charge the employer (or plan) a higher overall rate, or a higher blended per-participant rate. While HIPAA prohibits list billing based on health factors, it does not restrict commnications between issers and employers (or plans) regarding the factors considered in the rate calclations. Can a grop health plan impose a nonconfinement clase (e.g., a clase stating that if an individal is confined to a hospital at the time coverage wold otherwise take effect, coverage wold not begin ntil that individal is no longer confined)? No. A grop health plan may not deny or delay an individal s eligibility, benefits, or the effective date of coverage becase that individal is confined to a hospital or other health care facility. In addition, a health plan may not set an individal s premim rate based on that individal s confinement. Can a grop health plan impose an actively-at-work provision (e.g., a reqirement that an employee be actively at work after a waiting period for enrollment in order to have health coverage become effective on that day)? No. Generally a grop health plan may not refse to provide benefits becase an individal is not actively at work on the day that individal wold otherwise become eligible for benefits. However, plans may have actively-at-work clases if the plan treats individals who are absent from work de to a health factor (for example, individals taking sick leave) as if they are actively at work for prposes of health coverage. Plans may reqire individals to report for the first day of work before coverage may become effective. In addition, plans may distingish among grops of similarly sitated individals in their eligibility provisions. For example, a plan may reqire an individal to work fll time, sch as 250 hors per qarter or 30 hors per week, to be eligible for health plan coverage. Is it permissible for a grop health plan that generally provides coverage for dependents only ntil age 26 to contine health coverage past that age for disabled dependents? Yes, a plan can treat an individal with an adverse health factor more favorably by offering extended coverage. 26

29 HIPAA and the Affordable Care Act Wellness Program Reqirements The U.S. Departments of Labor, Health and Hman Services and the Treasry issed final reglations on incentives for nondiscriminatory wellness programs in grop health plans nder the Affordable Care Act and the HIPAA nondiscrimination provisions. These rles apply to both grandfathered and nongrandfathered grop health plans. Are wellness programs provided in connection with a grop health plan allowed nder the Affordable Care Act and HIPAA? The Affordable Care Act and HIPAA generally prohibit grop health plans from charging similarly sitated individals different premims or contribtions or imposing different dedctibles, copayment or other cost sharing reqirements based on a health factor. However, there is an exception that allows plans to offer wellness programs. There are two types of wellness programs provided in connection with a grop health plan. Participatory wellness programs are generally available withot regard to an individal s health stats. Either no reward is offered, or none of the conditions for obtaining a reward are based on an individal satisfying a standard related to a health factor. These programs comply with the nondiscrimination reqirements so long as the program is made available to all similarly sitated individals. For example: A program that reimbrses employees for all or part of the cost for memberships in a fitness center. A diagnostic testing program that provides a reward for participation and does not base any part of the reward on otcomes. A program that reimbrses employees for the costs of participating, or that otherwise provides a reward for participating, in a smoking cessation program withot regard to whether the employee qits smoking. A program that provides a reward to employees for attending a monthly, no-cost health edcation seminar. 27

30 Health-contingent wellness programs reqire participants to satisfy a standard related to a health factor in order to obtain a reward. There are two types of health-contingent wellness programs: activity-only and otcome-based. Activityonly programs reqire an individal to perform or complete an activity related to a health factor in order to obtain a reward. Examples inclde a walking, diet or exercise program. Otcome-based programs reqire 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. To comply with the nondiscrimination rles, health-contingent wellness programs mst meet five reqirements described in the final rles. What are the five reqirements for health-contingent wellness programs nder the final reglations? 1) The program mst give individals eligible to participate the opportnity to qalify for the reward at least once per year. 2) The total reward for all the plan s wellness programs that reqire satisfaction of a standard related to a health factor is limited generally, it mst not exceed 30 percent (or 50 percent for programs designed to prevent or redce tobacco se) of the cost of employee-only coverage nder the plan. If dependents (sch as sposes and/or dependent children) may participate in the wellness program, the reward mst not exceed 30 percent (or 50 percent) of the cost of the coverage in which an employee and any dependents are enrolled. 3) The program mst be reasonably designed to promote health and prevent disease. (Note: different reqirements apply for activity-only and otcome-based programs, as described later in this section.) 4) The fll reward mst be available to all similarly sitated individals. This means the program mst allow a reasonable alternative standard (or waiver of the otherwise applicable standard). (Note: different reqirements apply for activity-only and otcome-based programs, as described later in this section.) 5) The plan mst disclose in all materials describing the terms of the program the availability of a reasonable alternative standard (or the possibility of a waiver of the otherwise applicable standard). (Note: different reqirements apply for activity-only and otcome-based programs, as described later in this section.) Model langage is available (see page 139). 28

31 What factors may be considered in determining whether a program is reasonably designed to promote health and prevent disease? An activity-only or otcome-based program is considered reasonably designed to promote health or prevent disease, if the program has a reasonable chance of improving the health of, or preventing disease in, participating individals; is not overly brdensome; is not a sbterfge for discrimination based on a health factor; and is not highly sspect in the method chosen to promote health or prevent disease. The determination is based on all the relevant facts and circmstances. To ensre that an otcome-based wellness program is reasonably designed to improve health and does not act as a sbterfge for nderwriting or redcing benefits based on a health factor, a reasonable alternative standard to qalify for the reward mst be provided to any individal who does not meet the initial standard based on a test or screening that is related to a health factor. Under what circmstances mst a reasonable alternative standard be offered? For activity-only programs, a reasonable alternative standard (or waiver of the otherwise applicable standard) mst be offered to any individal for whom it is nreasonably difficlt de to a medical condition to satisfy the otherwise applicable standard, or for whom it is medically inadvisable to attempt to satisfy the otherwise applicable standard. Plans can seek physician verification with respect to a reqest for a reasonable alternative standard, if the reqest is reasonable nder the circmstances. For otcome-based programs, the reasonable alternative standard (or waiver of the otherwise applicable standard) mst be offered to any individal who does not meet the initial standard based on the measrement, test or screening. If the reasonable alternative standard is, itself, another otcome-based wellness standard, the reasonable alternative cannot be a reqirement to meet a different level of the same standard withot additional time to comply that takes into accont the individal s circmstances and an individal mst be given the opportnity to comply with the recommendations of their personal physician as a second reasonable alternative standard (if the physician joins in the reqest). It is not reasonable for plans to seek physician verification that a health factor makes it nreasonably difficlt for the individal to satisfy, or medically inadvisable for the individal to attempt to satisfy a standard nder an otcomebased wellness program. 29

32 For all health-contingent wellness programs (whether activity-only or otcome-based), all of the facts and circmstances are taken into accont when determining whether a plan has provided a reasonable alternative standard, inclding bt not limited to the following: If the reasonable alternative standard is completion of an edcational program, the plan or isser mst make the edcational program available or assist the employee in finding sch a program (instead of reqiring an individal to find sch a program nassisted), and may not reqire an individal to pay for the cost of the program. The time commitment reqired mst be reasonable (for example, reqiring attendance nightly at a one hor class wold be nreasonable). If the reasonable alternative standard is a diet program, the plan or isser is not reqired to pay for the cost of food bt mst pay any membership or participation fee. If an individal s personal physician states that a program standard (inclding, if applicable, the recommendations of the plan s medical professional) is not medically appropriate for that individal, the plan or isser mst provide a reasonable alternative standard that accommodates the recommendations of the individal s personal physician with regard to medical appropriateness. Plans and issers may impose standard cost sharing nder the plan or coverage for medical items and services frnished prsant to the physician s recommendations. What disclosre is reqired for the availability of a reasonable alternative standard? Plans and issers mst disclose the availability of a reasonable alternative standard to qalify for the reward (and, if applicable, the possibility of waiver of the otherwise applicable standard) in all plan materials describing the terms of a health-contingent wellness program (both activity-only and otcomebased wellness programs). This disclosre mst inclde contact information for obtaining the alternative and a statement that recommendations of an individal s personal physician will be accommodated. If plan materials merely mention that sch a program is available, withot describing its terms, this disclosre is not reqired. In addition, for otcome based-wellness programs, this notice mst also be inclded in any disclosre that an individal did not satisfy an initial otcomebased standard, for example a notice that an individal did not meet the BMI target range to qalify for the reward. 30

33 How do the wellness program rles apply to a grop health plan that offers a reward to individals who participate in volntary testing for early detection of health problems? The plan does not se the test reslts to determine whether an individal receives a reward or the amont of an individal s reward. Sch a program is considered a participatory wellness program since it does not base any reward on the otcome of the testing. Ths, it is allowed nder the HIPAA nondiscrimination provisions as long as the program is made available to all similarly sitated individals, withot being sbject to the five reqirements that apply to health-contingent wellness programs. Can a plan provide a premim differential between smokers and nonsmokers? The plan is offering a reward based on an individal s ability to stop smoking. This is considered an otcome-based wellness program. For the plan to implement this type of program, the plan s nonsmoking program wold need to meet the five reqirements for wellness programs that reqire satisfaction of a standard related to a health factor. Accordingly, this wellness program is permitted if: The premim differential is not more than 50 percent of the total cost of employee-only coverage (or 50 percent of the cost of coverage if dependents can participate in the program); The program is reasonably designed to promote health and prevent disease; Individals eligible for the program are given an opportnity to qalify for the discont at least once per year; The program provides a reasonable alternative standard, withot physician verification that the individal met the standard, to all individals who do not meet the otherwise applicable standard (those who se tobacco prodcts). For example, the reasonable alternative standard cold inclde disconts in retrn for attending edcational classes or for trying a nicotine patch; and Plan materials describing the terms of the premim differential (and any disclosre that an individal did not satisfy the wellness program standard) describe the availability of a reasonable alternative standard to qalify for the lower premim. 31

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