EBSA Rules Under the Health Insurance
Portability and Accountability Act

This file will guide you through the steps you need to take to comply with Part 7 of Title I of the Employee Retirement Income Security Act (ERISA).

Part 7 is made up of provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Mental Health Parity Act of 1996 (MHPA), the Newborns’ and Mothers’ Health Protection Act of 1996 (Newborns’ Act), and the Women’s Health and Cancer Rights Act of 1998 (WHCRA).

This guide summarizes the notice requirements and sample language that can be used by group health plans, issuers, and third party administrators when providing the notices.

The U.S. Department of Labor has a large, user-friendly section of their website that covers this topic.  We urge you to visit: www.dol.gov/ebsa/

Here is another valuable link that will provide you useful compliance assistance: http://www.dol.gov/ebsa/publications/top15tips.html

Certain "disclosures" are required for Group Health Plans that are subject to Part 7 of ERISA. Note: Where you read "See Checklist question XX..." -- we are trying to find a link to those questions and we will insert it as soon as possible.

The disclosures include:

HIPAA certificate of creditable coverage
(701 (e); 29 CFR 2590.701-5)
See Checklist questions 10 thru 15

All group health care plans must issue these certificates.  Each certificate must include:
-- Date issued;
-- Name of plan;
-- Employee name and ID;
-- Plan administrator name, address and phone number;
-- Phone number for further information;
-- Employee’s creditable coverage information;
-- When the certificate is provided on request, as soon as possible
-- When the certificate is provided automatically upon loss of coverage and a COBRA qualifying event, not later than the end of the period for providing COBRA notice (generally 44 days).
-- When the certificate is provided automatically upon loss of coverage and not a COBRA qualifying event, within a reasonable time after coverage ceases (as soon as possible).

General notice of preexisting condition exclusion
(29 CFR 2590.701- 3(c))
See Checklist question 8

Any group health plan that contains a pre-existing condition exclusion must disclose the existence and terms of any exclusion under the plan and the rights of employees to demonstrate creditable coverage. This includes the right to request a certificate from a prior plan or issuer and s statement that the current plan will assist in obtaining a certificate from any prior plan or issuer, if necessary.  The notice of any preexisting condition exclusion must be provided before a preexisting condition exclusion may be applied to any employee.

Individual Notice of preexisting condition exclusion
(29 CFR 2590.701-5(d))
 See Checklist question 9.

Group health plans that contain a pre-existing condition exclusion, may give notice, but only after receiving creditable coverage information that there is not enough to offset the pre-existing condition exclusion period. This notice must include:

-- The plan’s determination of the period of creditable coverage (Note: the plan must allow the employee a reasonable opportunity to submit additional evidence of creditable coverage);

-- The remaining pre-existing condition exclusion period that will apply; and

-- A description of any appeal procedures established by the plan of issuer.

This notice must be given within a reasonable time of the presentation of creditable coverage by the employee.

Notice of special enrollment rights
(29 CFR 2590.701-6(c))
 See checklist Question 18

All group health plans must provide a written description of the plan’s special enrollment rules. This information must be provided on or before the time an employee is offered an opportunity to enroll in the plan.  Description of rights related to hospital stays in connection with childbirth.

(711(d); 29 CFR 2520.102-3(u))
 See checklist question 36

Group health plans that provide maternity or newborn infant coverage must include in their Summary Plan Description (SPD) any requirements under any law applicable to the plan and any health insurance coverage offered under the plan, relating to any hospital length of stay in connection with childbirth for a mother of newborn child. If federal law applies in some areas where the plan operates and state law applies in other areas, the SPD should describe the applicable requirements in each area.

WHCRA enrollment notice (713(a))
 See Checklist question 39

Group health plans that provide coverage for mastectomy benefits must provide notice of the benefits that WHCRA requires the group health plan to cover and any deductibles and coinsurance limitations applicable to such coverage. (Under WHCRA, coverage of breast reconstruction benefits may be subject only to deductibles and coinsurance limitations with those established for other benefits under the plan or coverage.) This notice must be provided upon enrollment.

WHCRA annual notice (713(a))
 See Checklist question 38

Group health plans that provide coverage for mastectomy benefits must provide information on the availability of benefits for the treatment of mastectomy-related services, including reconstructive surgery, prostheses, and physical complications, including lymph edemas under the plan; and information on how to obtain a detailed description of the mastectomy-related benefits available under the plan. This information must be provided once each year after enrollment.

Model Certificate of Group Health Plan Coverage

IMPORTANT -- This certificate is evidence of your prior health insurance coverage. You may need to give this certificate if you become eligible under a group health plan that excludes coverage for certain medical conditions that you have before you enroll. This certificate may need to be provided if medical advice, diagnosis, care, or treatment was recommended or received for the condition within the 6-month period before your enrollment in the new plan. If you become covered under another group health plan, check with the plan administrator to see if you need to provide this certificate. You may also need this certificate to buy, for yourself or your family, an insurance policy that does not exclude coverage for medical conditions that are present before your enroll.

1. Date of this certificate:_________________________
2. Name of group health plan:______________________
3. Name of participant:___________________________
4. Identification number of participant:______________
5. Name(s) of any dependents to whom this certificate applies:_____________________
6. Name, address, and telephone number of plan administrator or issuer responsible for providing this certificate:____________________
7. For further information, call:________________________
8. If the employee(s) in line 3 and line 5 has/have at least 18 months of creditable coverage (disregarding periods of coverage before a 63-day break), check here __________ and skip lines 8 and 10.
9. Date waiting period or affiliation period (if any) began:_____________________________
10. Date coverage began:_____________________
11. Date coverage ended: _______________ (or check if coverage is continuing as of the date of this certificate: _______________).

Note: separate certificates will be furnished if information is not identical for the participant and each beneficiary.

Model Description of Special Enrollment Rights

If you are declining enrollment for yourself or for your dependents (including your spouse) because of other health insurance coverage, you may in the future be able to enroll yourself or your dependents in this plan, provided that you request enrollment within 30 days after your other coverage ends. In addition, if you have a new dependent as a result of marriage, birth, adoption, or placement for adoption, you may be able to enroll yourself and your dependents, provided that you request enrollment within 30 days after the marriage, birth, adoption, or placement for adoption.

Guidelines for General Notice of Preexisting Conditions Exclusion

A group health plan (or issuer) may not impose a preexisting condition exclusion on a participant or dependent before notifying the participant, in writing, of:

-- The existence and terms of any preexisting condition exclusion under the plan;

-- The right to demonstrate creditable coverage (and any applicable waiting periods);

-- The right to request a certificate from a prior plan or issuer, if necessary; and

-- That the current plan (or issuer) will assist in obtaining a certificate from any prior plan or issuer, if necessary.

Guidelines for Individual Notice of Preexisting Condition Exclusion

A group health plan (or issuer) seeking to impose a preexisting condition exclusion is required to disclose to the employee, in writing:

-- Its determination of the period of creditable coverage, including the source and substance of any information on which the plan or issuer relied (Note: the plan must allow a reasonable opportunity to submit additional evidence of creditable coverage);

-- The remaining preexisting condition exclusion period that will apply to the employee; and

-- Any appeal procedures established by the plan or issuer.

Sample Language for the Newborns’ Act Disclosure Requirement

Here is sample language that group health plans subject to the Newborns’ Act may use in SPDs to describe the federal requirements relating to hospital lengths of stay in connection with childbirth:

Group health plans and health insurance issuers generally may not, under federal law, restrict benefits for any hospital length of stay in connection with childbirth for the mother or newborn child to less than 48 hours after a vaginal delivery, or less than 96 hours after a cesarean section. Federal law generally does not prohibit the mother’s or newborn’s attending provider -- after consulting with the mother -- from discharging the mother or her newborn earlier than 48 hours (or 96 hours as applicable). Plans and issuers may not require that a provider obtain authorization from the plan or the insurance issuer for prescribing a length of stay not in excess of 48 hours (or 96 hours)."

Sample Language for WHCRA Annual Notice

Our health insurance -- as required by the Women’s Health and Cancer Rights Act of 1988 -- provides benefits for mastectomy-related services including all stages of reconstruction and surgery to achieve symmetry between the breasts, prostheses, and for complications resulting from a mastectomy, including lymph edemas. Call your Plan Administrator [insert telephone number] for more information.

Sample Language for WHCRA Enrollment Notice

If you have had or are going to have a mastectomy, you may be entitled to certain benefits under the Women’s Health and Cancer Rights Act of 1998 (WHCRA). For women receiving mastectomy-related benefits, coverage will be provided in a manner determined in consultation with the attending physician and the patient, for:

-- All stages of reconstruction of the breast on which the mastectomy was performed;

-- Surgery and reconstruction of the other breast to produce a symmetrical appearance;

-- Prostheses and;

-- Treatment of physical complications of the mastectomy, including lymph edemas.

These benefits will be provided subject to the same deductibles and coinsurance applicable to other medical and surgical benefits provided under the plan. These deductibles and coinsurance apply: [insert deductibles and coinsurance applicable to these benefits]. If you would like more information on WHCRA benefits, call your Plan Administrator [insert telephone number].