On August 23, 2010 the DOL issued regulatory guidance, which set up interim enforcement safe harbor procedures for the federal external review processes (mandated by PPACA), which affect non-grandfathered, ERISA-covered self-insured group health plans (and specific other self-insured group health plans that are not subject to a state external review process). The DOL has also issued example notices for employers’ use which can be found on their website.
ERISA Documents Inc. offers the inclusion of either the summarized version or a more detailed version to be added to the SPD. Currently, the notices are optional, and although they are not required to be in your SPD, they do inform the employee of additional rights so it may be beneficial to at least include the abbreviated notice.
Currently grandfathered group health plans are not required to comply. Non-grandfathered, self-insured group health plans (and certain other self-insured health plans not subject to a state external review process) do have to comply with the notice requirement.
Plan years beginning on or after September 23, 2010, are affected by the safe harbor provision (January 1,2011 for calendar-year plans). This will continue until future guidance supersedes it. An important note; during this safe-harbor period, the DOL and IRS will not take any enforcement action against a self-insured group health plan which adheres with either of the following interim compliance methods:
• Adherence to the procedures set forth in Technical Release 2010-01
• Voluntary compliance with a state’s external review process, if the state chooses to expand access to their external review process to plans that are not subject to the appropriate state laws such as self-insured plans
If either method shown above was adhered to by a self-insured group health plan, the plan sponsor would not be responsible for self-reporting any excise tax liability on IRS Form 8928, with respect to the external review process requirements.
