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September 25, 2012

Supreme Court Decision Means Health Plans Under Fire …

Summary:

Employers must update their health plan documents, summary plan descriptions and other communications, administrative procedures and contracts to meet the summary of benefits coverage and other requirements of the Affordable Care Act.

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… To Complete ACA-Required Summary of Benefits & Communications & Other Health Plan Updates

The June 28, 2012 Supreme Court National Federation of Independent Business v. Sebelius ruling rejecting constitutional challenges to the Patient Protection and Affordable Care Act (Affordable Care Act) means most health plans, their employers and other sponsors, fiduciaries and administrators, and insurers must rush to update their health plan documents, summary plan descriptions and other communications, administrative procedures and contracts, reporting and other arrangements to meet the “Summary of Benefits & Coverage” (SBC) and other requirements of Affordable Care Act and other federal rules that have, or by year end will, apply to their group health plans.

Final SBC Regulations1 implementing the Affordable Care Act’s summary of benefits and coverage requirements jointly published February 14, 2012 by the Departments of Labor, Health and Human Services (HHS), and the Treasury (the Departments) will require most health plans and health insurers begin providing the SBC and Uniform Glossary meeting Department standards to covered persons and coverage applicants beginning on the opening day of the first enrollment period beginning after September 22, 2012.

Parties responsible for completing these arrangements should expect to need significant lead time to properly tailor a SBC and Glossary to their health plan, and complete other necessary arrangements to comply in a timely manner with the Final SBC Regulations. Most health plans will need significant time to complete the analysis needed to prepare a SBC appropriately tailored to their health plan. In addition, most group health plans and insurers, their sponsors, administrators and fiduciaries also generally want to identify and make changes to their health plan design, documents, summary plan descriptions and other materials and practices in response to the new requirements.

Completing the preparations to meet the deadline for providing SBCs won’t be easy for most health plans and insurers planning to conduct annual or other enrollment periods this Fall. Most employer and other health plan sponsors, fiduciaries, insurers and administrators can expect to experience significant challenges completing the arrangements necessary to comply with the highly technical and extremely rigid requirements of the SBC rules. Most health plan sponsors, fiduciaries and administrators also will want to consider tightening plan document, summary plan description, claims and appeals notices and other plan documentation and associated administrative procedures to coordinate with the SBC language and other Affordable Care Act requirements.

Regulations implementing the SBC requirements published in February, 2012 and subsequent regulatory guidance dictate detailed requirements about the required content of the SBC, as well as dictate that health plans and insurers covered by the SBC rules provide a Uniform Glossary of terms, many of which are likely to differ from definitions of the same or similar terms in plan documents, summary plan descriptions or other plan related documents. To help further clarify these requirements, the Departments on March 19, 2012 published a new FAQ2 that clarifies certain information about the SBC Regulation and its deadline and other requirements. When plans cover a culturally diverse workforce, health plans also will need to make the necessary arrangements to prepare their plans where necessary to comply with the Affordable Care Act’s requirement that health plans and insurers communicate in a culturally and linguistic manner.

Taking time to make changes needed to identify and resolve potential conflicts and other ambiguities between required terms of the SBC and Glossary and existing health plan documentation, communications and procedures is particularly important in light of the United States Supreme Court’s May 16, 2011 ruling in Cigna Corp. v. Amara.

In Amara, the Supreme Court ruled that federal courts may use equitable remedies provided for under the Employee Retirement Income Security Act to give a remedy to individuals hurt because summary plan descriptions or other communication or disclosure documents provided by the health plan contain terms that conflict with the official health plan documents under certain conditions. Health plans, their fiduciaries, sponsoring employers and unions, insurers, administrative service providers and their management also generally will want to carefully craft the SBC and other related plan materials and processes to manage these risks and support the enforceability of the intended plan design.

1See 26 CFR 54.9815-2715, 29 CFR 2590.715-2715, and 45 CFR 147.200, published February 14, 2012 at 77 FR 8668.

2See FAQS About Affordable Care Act Implementation (Part VIII).

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