by Lexi Garcia | Jun 6, 2024 | Blog
Providing a Summary of Benefits and Coverage (SBC) that is culturally and linguistically appropriate is not just a good practice—it’s a legal requirement for many group health plans. Whether your plan is self-insured or fully insured, it’s essential to understand and comply with these regulations to avoid penalties and ensure your members can access and understand their benefits. In this blog post, we’ll break down what you need to know about furnishing the SBC in languages other than English.
Understanding the Requirement
The SBC must be presented in a “culturally and linguistically appropriate” manner. This requirement is part of a broader effort to ensure that individuals who are literate only in a non-English language can understand their health coverage options. The specific conditions under which this requirement is triggered are based on U.S. Census data.
When Does the Requirement Apply?
The requirement applies if your plan’s SBC is provided to individuals in any county where at least 10% of the population is literate only in the same non-English language. The Department of Health and Human Services (HHS) regularly updates a list of such counties and the languages that apply. As of January 1, 2025, a new list will come into effect, and it’s crucial for plan administrators to stay updated with these changes.
Compliance Steps for Group Health Plans
To comply with the “culturally and linguistically appropriate” requirement, follow these steps:
- Identify Applicable Counties: Check the latest HHS list to see if any counties where your plan members reside meet the 10% threshold for non-English language literacy.
- Provide Interpretive Services: In applicable counties, offer interpretive services in the relevant languages. This includes answering questions and providing assistance in the non-English language.
- Include a One-Sentence Statement: On the SBC, include a one-sentence statement in the applicable non-English languages. This statement should clearly indicate how to access language services. It must be placed on the same page as the “Your Rights to Continue Coverage” and “Your Grievance and Appeals Rights” sections.
- Offer Written Translations: Upon request, provide a written translation of the SBC in the applicable non-English language. The agencies have provided an SBC template that includes this one-sentence statement in all required languages for plan years beginning before 2025.
- Stay Updated: Keep an eye on updates from the HHS, DOL, and IRS regarding additional translations and template updates. These resources will assist in maintaining compliance with the latest requirements.
Voluntary Compliance
Even if your plan does not operate in a county meeting the 10% threshold, you may choose to include the one-sentence statement in any non-English language. If you opt for this, ensure you are prepared to provide the necessary language services.
Differentiating SBC Requirements from ERISA
It’s important to note that the requirements for SBCs differ from ERISA’s rules on language assistance for Summary Plan Descriptions (SPDs) and Summary of Material Modifications (SMMs). Ensure you are familiar with both sets of regulations to avoid confusion and non-compliance.
Meeting the requirement for a culturally and linguistically appropriate SBC is vital for compliance and member satisfaction. By following the steps outlined above, your self-insured group health plan can ensure that all members understand their coverage options, regardless of their primary language. Stay informed, be proactive, and provide the necessary language services to comply with federal regulations and support your diverse member base.
Source: Thomson Reuters
by Lexi Garcia | Feb 29, 2024 | Blog
QUESTION: I am reviewing our company’s employee benefit programs and confirming that they are treated appropriately for ERISA compliance purposes. Our disability program provides income-replacement benefits to employees who are unable to work because of illness or injury; payments commence once an employee is out of work for more than two weeks. Benefits are paid from the company’s general assets, not from a trust or separate account. Am I right that for this reason, our program is not an ERISA plan, or do additional conditions apply?
ANSWER: You are correct that a DOL regulation exempts certain “payroll practices,” including disability payments, from ERISA-plan status. You are also correct that the main condition of this regulatory exemption (often referred to as a safe harbor) is that the payments come from the employer’s general assets. It sounds like your program meets this requirement—but several other elements also must be considered to determine whether your program falls within the exemption. If a disability program has any of the following features, the payroll practice safe harbor is not available, and the program is most likely subject to ERISA:
- Trust or Separate Account. As noted above, making payments from the employer’s general assets is a key component of the exemption, so funding the program through a trust or separate account will take it outside the safe harbor. It is, however, generally permissible to earmark funds for the program within the employer’s general assets, so long as the funds remain available for other purposes, such as to pay the employer’s creditors.
- Insurance. Payment of benefits through insurance is not payment from the employer’s general assets, so using insurance will take the program outside the safe harbor.
- Paying More Than Normal Compensation. To fall within the safe harbor, the program may pay eligible employees only their normal compensation, or less (for example, 60% of normal compensation).
- Paying Benefits to Former Employees. The safe harbor covers only payments to employees while absent from work, not to former employees—the exemption does not apply if payments continue after an individual terminates employment. You will need to consider the duration of benefits available under the program and ensure that it does not extend beyond when the company considers termination of employment to occur. For example, if an employee who does not return to work is treated as having terminated employment before exhaustion of the disability benefits available under the program, the program does not fall within the safe harbor. As a practical matter, long-term disability programs are more likely to provide benefits beyond termination of employment and thus not meet the requirements, even if paid from the employer’s general assets.
Although it is possible that an arrangement that does not fall within the regulatory exemption may still avoid ERISA’s application under the general standard (a plan, fund, or program established or maintained by an employer to provide ERISA-listed benefits to employees), such a result is unlikely. Thus, any variations from the safe harbor requirements should be discussed with legal counsel. As a final caution, if your company wishes to treat this program as not subject to ERISA, make sure that any program documents, descriptions, and employee communications are consistent with this intent. Even though an employer generally cannot make a non-ERISA arrangement subject to ERISA by simply calling it an ERISA plan, the employer’s treatment is a factor—at least one court has found that treating a potentially exempt payroll practice as an ERISA plan was a “strong reason to find ERISA coverage.” If the company uses a single “umbrella” or “wrap” document to bundle multiple benefit programs, the document should specify which programs are—and are not—intended to be subject to ERISA.
Source: Thomson Reuters
by Lexi Garcia | Feb 22, 2024 | Blog
QUESTION: We are planning to add an HDHP and to make company contributions to employees’ HSAs. We have been told that an HSA contribution program—unlike the HDHP coverage—would not be subject to ERISA. Is that always true, or are there circumstances in which ERISA might apply?
ANSWER: Employer-facilitated HSA contribution programs generally are not subject to ERISA. Even though HSA funds may be intended to provide medical care, HSAs are viewed as personal accounts that are not ERISA-covered welfare benefit plans, so long as employee participation is completely voluntary and the employer’s involvement is limited. However, there are ways in which an HSA contribution program could become subject to ERISA. Those ERISA triggers should be avoided because ERISA’s compliance obligations were not crafted with HSAs in mind, and it is not clear how and whether all of ERISA’s requirements could be satisfied by an HSA program.
The DOL has established two safe harbors from ERISA coverage that may apply to workplace HSA programs. One, the voluntary plan safe harbor for group or group-type insurance programs, does not allow employer contributions, so for your purposes, we will focus instead on the HSA-specific safe harbor, which allows employer contributions. Under that safe harbor, employer contributions will not result in ERISA’s application if all of the following requirements are met:
- Voluntary Employee Contributions. An employer using the safe harbor can unilaterally establish HSAs for employees and deposit employer funds into those accounts. But any contributions made by employees, including salary reduction contributions, must be voluntary.
- Portable Funds. An employer’s program may limit forwarding of HSA contributions to a single HSA provider without triggering ERISA. But the employer cannot limit what happens after that initial deposit; employees must be able to move funds to another HSA if they desire.
- Unrestricted Use of Funds. Some employers may wish to impose conditions on how HSA funds are used, such as a requirement that funds be used only for qualified medical expenses. Any such restrictions, however, will cause the arrangement to fall outside the safe harbor.
- No Employer Influence. When selecting an HSA provider, employers may choose trustees or custodians that offer only a limited selection of investment options or options replicating those available under the employer’s 401(k) plan. Generally, however, the employer cannot make or attempt to influence employees’ investment decisions.
- Not Represented as an ERISA Plan. This requirement seems simple, but it is also easily violated. Participant communications must not represent the HSA program as part of an ERISA plan, or as an ERISA plan of its own, and should include appropriate disclaimers indicating that the HSA is not part of an ERISA plan. From a drafting perspective, the HSA provisions should not be included in an ERISA plan document. While bundling non-ERISA and ERISA benefits will normally not make the non-ERISA benefits subject to ERISA, careful drafting and communications are required to ensure that the HSA satisfies the safe harbor.
- No Employer Compensation. The employer cannot receive any direct or indirect payment or compensation in connection with its employees’ HSAs. This rule precludes discounts on other products that the employer may purchase from the HSA vendor, and may raise questions in other situations (e.g., bundled arrangements). This prohibition does not preclude making HSA contributions through a cafeteria plan; the employment tax savings realized by the employer is not considered compensation for this purpose.
Failure to meet any one of these elements will cause the program to fall outside the safe harbor. Although a program involving employer actions or program rules not specifically authorized by the safe harbor might still avoid ERISA, any variations should be discussed in advance with counsel.
Source: Thomson Reuters
by admin | Jan 25, 2024 | Blog
QUESTION: Our company has just received a letter from a participant in our health plan, asking for copies of numerous documents relating to the plan. What are our responsibilities?
ANSWER: ERISA § 104(b)(4) requires a plan administrator to furnish copies of specified plan documents within 30 days after a written request from a participant or beneficiary. Failure to timely provide requested documents could lead to financial penalties, so it is important to quickly evaluate the participant’s request and provide copies of the documents that are subject to the disclosure obligation. Here are some issues to consider in responding to the request.
- Plan Administrator’s Responsibility. The ERISA disclosure obligation and penalties for noncompliance fall on the plan administrator. Unless the plan document designates a different person or entity, the plan administrator is the plan sponsor, which in a single employer plan is the employer. We assume that your company is the “plan administrator” under ERISA. Courts are authorized, in their discretion, to impose penalties of up to $110 per day for each day that requested documents are not provided, starting on the 31st day after the request.
- Covered Documents. The specified documents that must be furnished upon request are the latest updated SPD (including any interim SMMs); the latest Form 5500; any final Form 5500 for a terminated plan; and any applicable bargaining agreement, trust agreement, contract, or “other instruments under which the plan is established or operated.” It can be challenging to determine what documents fall within the “other instruments” category. This is ultimately a facts-and-circumstances determination. The DOL and the courts have found this category to include plan documents, insurance policies, usual and customary fee schedules and guidelines, TPA contracts (if they affect plan administration), and minutes of plan meetings (affecting plan administration). The plan administrator is generally not obligated to furnish documents that are not within the plan administrator’s possession—for example, an insurer’s or claims administrator’s claim processing guidelines.
- How to Furnish. While the statute specifically refers to mailing requested documents, it appears that, like other ERISA-required disclosures, these documents are to be furnished using a method “reasonably calculated to ensure actual receipt of the material.” This would include any of the methods appropriate for furnishing SPDs, including mail, hand-delivery, or electronically (preferably in a manner that satisfies the DOL’s safe harbor for electronic delivery). A reasonable charge may be imposed for copying (up to 25 cents per page but not more than the actual cost), but not for postage or other tasks associated with handling the request.
Keep in mind that other situations may trigger an obligation to furnish documents to participants or beneficiaries. In addition to the requirement to furnish SPDs and other materials automatically, ERISA’s claims procedure rules require that a claimant be given, upon request and free of charge, “reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” Also, the courts and the DOL have sometimes relied on a generalized fiduciary duty to require that additional information be provided to participants and beneficiaries in individual situations.
Source: Thomson Reuters
by Lexi Garcia | Jan 11, 2024 | Blog
QUESTION: Our company sponsors a calendar-year self-insured major medical plan subject to ERISA. Are we permitted to treat Patient-Centered Outcomes Research (PCOR) fees as plan expenses?
ANSWER: The DOL has indicated that PCOR fees generally are not permissible plan expenses under ERISA since they are imposed on the plan sponsor and not the plan. As background, PCOR fees, which are used to fund research on patient-centered outcomes, are payable annually by sponsors of self-insured plans (and insurers, but we focus here on plan sponsors) through plan years ending before October 1, 2029. By statute, the fee for a self-insured plan is to be paid by the “plan sponsor,” which in most cases means the employer or employee organization that established or maintains the plan.
This means that plan assets (e.g., trust assets or participant contributions) should not be used to pay PCOR fees since ERISA’s prohibited transaction rules prohibit plan assets from being used to offset employer obligations. However, multiemployer plan assets may be used to pay PCOR fees since the plan sponsor liable for a multiemployer plan’s fee is generally an independent joint board of trustees with no source of funding other than plan assets.
Source: Thomson Reuters
