The Required Annual Notices to Employees
By Brian Gilmore | Published August 28, 2020
**Question: **What are the annual required employer notices to employees related to health and welfare plans?
**Short Answer: **Employers must provide the Medicare Part D Creditable Coverage, CHIP, and WHCRA notices annually. Employers should also consider providing other notices with the required annual notices.
Required Annual Notice #1: Medicare Part D Notice of Creditable Coverage
When: Annually by October 15.
Why: To inform employees whether their employer-sponsored group health plan’s prescription drug coverage is at least as rich as a Medicare Part D plan.
To Whom: All Part D eligible individuals who are enrolled or seeking to enroll in the employee’s plan that provides prescription drug coverage. This includes all individuals enrolled in Part A or Part B who live in the service area of a Part D plan. (Best Practice: Provide the notice to all employees because employers will not know which employees, spouses, or dependents are enrolled in Part A or Part B, and they will not know which individuals are seeking to enroll in the employer’s plan).
How: Paper delivery by hand, first class mail, or electronic delivery for participants who “have access to the plan sponsor’s electronic information system on a daily basis as part of their work duties.”
Penalties: No specific employer penalty, but employees must have information to avoid potential Part D late enrollment penalties (the premium may go up by at least 1% of the Medicare based beneficiary premium for every month without creditable coverage).
Combining with Other Materials: Permitted as long as “prominent and conspicuous.” If not on the first page, the first page should include a separate box that is bolded or offset on the first page and prominently references the notice in at least 14-point font. (Model Language: “If you (and/or your dependents) have Medicare or will become eligible for Medicare in the next 12 months, a Federal law gives you more choices about your prescription drug coverage. Please see page for more details.”)
Required Annual Notice #2: Children’s Health Insurance Program (CHIP) Notice
**When: **(Best Practice: Although there is no specific timeframe for this annual notice, we recommend providing it with the other required annual notices.)
Why: To inform employees that they may be eligible for premium assistance from through CHIP or Medicaid state programs.
To Whom: All employees, regardless of enrollment status, residing in states providing CHIP/Medicaid premium assistance. (Best Practice: Provide the notice to all employees to avoid tracking each employee’s state premium assistance programs.)
How: Paper delivery by hand, first class mail, or electronic delivery where the ERISA electronic disclosure safe harbor is satisfied.
**Penalties: **Currently at $119/day/employee based on the 2020 indexed penalty amounts.
Combining with Other Materials: Permitted as long as the notice “appears separately and in a manner which ensures that an employee who may be eligible for premium assistance could reasonably be expected to appreciate its significance.”
Model Notice: https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/chipra (updated each January 31 and July 31)
Required Annual Notice #3: Women’s Health and Cancer Rights Act (WHCRA) Notice
**When: **Upon enrollment and annually. (Best Practice: Although there is no specific timeframe for this annual notice, we recommend providing it with the other required annual notices.)
Why: To inform employees of the availability of coverage under the health plan for reconstructive surgery and other related items and procedures following a mastectomy.
To Whom: All participants and beneficiaries under the health plan. A separate notice must be furnished to a beneficiary (i.e., a spouse, domestic partner, or dependent) where the individual’s last known address is different than the last known address of the covered participant.
How: Paper delivery by hand, first class mail, or electronic delivery through the ERISA electronic disclosure rules.
**Penalties: **$100/day/employee under §4980D; potential employee ERISA breach of fiduciary duty claim.
Combining with Other Materials:
Recommended Annual Notice #1: HIPAA Special Enrollment Notice
Employers are required to provide the HIPAA special enrollment notice at or before the time an employee is initially offered the opportunity to enroll in the health plan. There is no requirement to distribute the notice annually.
Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices because of the importance of the special enrollment rights.
For more information on HIPAA special enrollment rights:
Newfront Compliance Post: HIPAA Special Enrollment Events
Recommended Annual Notice #2: Patient Protections Notice
Employers sponsoring a non-grandfathered health plan with options that require designation of a primary care provider (e.g., HMOs) must provide the patient protection notice to plan participants whenever an SPD or other similar description of benefits is provided. There is no requirement to distribute the notice annually.
Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices because the DOL asks for evidence the employer provided it to participants in its standard list of documents to be produced in an investigation/audit context. The notice should also be included in the SPD.
Grandfathered plans are not subject to the patient protections notice. For more information on grandfathered plan status:
Newfront Compliance Post: ACA Grandfathered Plan Status
Recommended Annual Notice #3: ADA Wellness Program Notice
Employers sponsoring a wellness program must provide an ADA notice addressing how the employer will protect and use information related to the program. There is no explicit requirement in the EEOC guidance to distribute the notice annually.
The EEOC ADA FAQ guidance provides that there is no requirement that employees receive the notice at a particular time. However, it also states that employees should receive the notice before providing any health information, and with enough time to decide whether to participate in the program.
Best Practice: Although there is no requirement to re-distribute the notice annually, we recommend providing it at the same time as the other required annual notices to avoid employees claiming that they were not adequately informed of their ADA rights with respect to the wellness program.
Note that a federal court has recently ruled that the EEOC wellness program rules do not meet the requirements of the ADA, and the EEOC has accordingly formally removed those regulations. Therefore, it is also not clear now whether the EEOC is currently enforcing this notice requirement. We feel that the best practice approach is to continue following the vacated EEOC regulations until we have new guidance specifying the ADA requirements moving forward.
Model Notice: https://www.eeoc.gov/regulations/sample-notice-employer-sponsored-wellness-programs
Other Non-Annual Notice #1: The Newborns’ and Mothers’ Health Protection Act (NMHPA) Notice
The NMHPA requires employers to include in the health plan SPD a statement describing the plan’s required minimum hospital length of coverage in connection with childbirth for the mother and newborn child.
The NMHPA notice is not an annual notice requirement. It is typically not included with the employer’s annual legal notices described above. DOL guidance confirms that including the NMHPA notice in the SPD is sufficient.
Other Non-Annual Notice #2: ACA Exchange Notice
The ACA requires employers subject to the Fair Labor Standards Act (FLSA) to provide the Exchange notice to new hires within 14 days of the employee’s start date. The notice informs employees of how to access alternative individual policy coverage through the Exchange.
The Exchange Notice is not an annual notice requirement. It is typically not included with the employer’s annual legal notices described above. Best practice is to include the Exchange Notice as part of the standard new hire materials.
For more information on the ACA Exchange Notice:
Newfront Compliance Post: The ACA Exchange Notice
Other Non-Annual Notice #3: HIPAA Notice of Privacy Practices
Employers with a self-insured health plan must provide employees with a HIPAA Notice of Privacy Practices describing the plan’s use and disclosure of PHI upon enrollment and within 60 days of a material change to the notice.
The HIPAA Notice of Privacy Practices is not an annual notice requirement. It is typically not included with the employer’s annual legal notices described above.
HIPAA does require employers with a self-insured health plan to inform employees of the availability of the Notice of Privacy Practices at least once every three years. Some employers with a self-insured health plan include this notice of the availability of the Notice of Privacy Practices with the annual legal notices.
Sample language: “The [Enter Plan Name]’s use and disclosure of protected health information (PHI) under its self-insured health plan options is described by a HIPAA Notice of Privacy Practices maintained by [Enter Employer Name]. One of our responsibilities under HIPAA is to periodically remind you of the availability of this Notice of Privacy Practices should you want more information about the Plan’s procedures to protect and secure the confidentiality of your PHI. You may access the Plan’s HIPAA Notice of Privacy Practices by [Enter Method of Accessing Notice]. Please contact the HR Department if you have any questions about this Notice.”
For more information on the HIPAA Notice of Privacy Practices:
Newfront Compliance Post: HIPAA Notice of Privacy Practices
Links to Required and Recommended Annual Notices
Many employers prefer to provide employees with online access to the annual notice materials. Here is a sample message that employers can use for that purpose:
2021 Health Plan Annual Notices
The Company is required by applicable law to provide you with certain notices each year that inform you of your rights and our responsibilities with respect to the Company’s health plan (the “Plan”).
Please carefully review the information contained below and share it with your covered dependents. We suggest you keep this information with your Summary Plan Description (“SPD”) for future reference.
[Company’s Plan Provides Part D Creditable Coverage]
[Company’s Plan **DOES NOT **Provide Part D Creditable Coverage]
In the event of a conflict between the official Plan Document and these legal notices, the SPD, or any other communication related to the Plan, the official Plan Document will govern. If you have any questions or would like to obtain a paper version of these notices, please contact the HR Department.
Brian Gilmore
Lead Benefits Counsel, VP, Newfront
Brian Gilmore is the Lead Benefits Counsel at Newfront. He assists clients on a wide variety of employee benefits compliance issues. The primary areas of his practice include ERISA, ACA, COBRA, HIPAA, Section 125 Cafeteria Plans, and 401(k) plans. Brian also presents regularly at trade events and in webinars on current hot topics in employee benefits law.
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