Distribution Required by October 1
Included in the Patient Protection and Affordable Care Act, as amended ("Affordable Care Act"), is a requirement that employers provide notice to all employees of the availability of (and certain information about) health coverage under the health insurance exchange ("Marketplace")1 and the employer's plan, as applicable. By statute, this new notice requirement was effective by and after March 1, 2013, but, in January 2013, the Department of Labor ("DOL") helpfully delayed implementation until the issuance of further guidance (see our January Alert).
On May 8, the DOL issued temporary guidance (Technical Release 2013-02) and model notices for employers' use in meeting the new October 1, 2013 implementation deadline. The DOL likely will issue additional guidance and, perhaps, revised model notices in the coming months, but has stated that any such future guidance "will provide adequate time to comply with additional or modified requirements." Thus, use of these model notices apparently will constitute compliance with this new notice requirement unless and until the DOL provides contrary, prospective guidance.
The DOL has provided two model notices (each of which requires some tailoring by the employer): (1) one for use by an employer that offers health plan coverage to some or all of its employees; and (2) the other for use by an employer that does not offer health plan coverage.
The notice requirement is broad-reaching: all employers subject to the Fair Labor Standards Act ("FLSA")2 must provide the notice to all employees, without regard to health plan eligibility (e.g., part-time vs. full-time) or enrollment status.
The applicable notice must be provided:3
- to current employees before October 1, 2013, and
- to new employees, at the time of hiring (or within 14 days of an employee's start date) on and after October 1, 2013.
New Model COBRA Election Notice Also Issued
With this guidance, the DOL also has updated its model COBRA4 election notice to add information about the new (in 2014) Marketplace, which may provide qualified beneficiaries with an alternative to COBRA continuation coverage (i.e., "to help make qualified beneficiaries aware of other coverage options available in the Marketplace"), and to make certain revisions to reflect the elimination of preexisting condition limitations beginning in 2014.
Although the model election notice is not required to be used by plan administrators, the DOL considers its use to constitute good faith compliance with this notice requirement under COBRA, and we therefore recommend the revisions (visible in the DOL's redline version) be incorporated into all COBRA election notices.
1 With this and other recent Affordable Care Act guidance, it appears the regulators have continued, if not completed, the transition to the term "Health Insurance Marketplace" or, simply "Marketplace," to describe the health insurance market previously (and still somewhat commonly) referred to as the "exchange."
2 For help in determining whether a particular employer is subject to the FLSA, see the DOL's Internet compliance tool available here.
3 The notice may be provided electronically, provided the DOL's electronic safe harbor requirements are met.
4 The Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").