The U.S. Department of Labor (DOL) has significantly increased the number of employees who will be eligible to take Family and Medical Leave Act (FMLA) leave to care for a child by broadening the definition of who constitutes a 'son or daughter.' Enacted in 1993, the FMLA provides eligible employees with up to 12 workweeks of unpaid leave "for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter or to care for a son or daughter with a serious health condition."The FMLA originally defined 'son or daughter' to include "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis." (Loco parentis is a Latin term which means "in place of a parent - a person or institution that assumes parental rights and duties for a minor.) An individual standing in loco parentiscan include a person without a biological or legal relationship to the child. Under the wider, more liberal interpretation of 'parents' under FMLA, domestic partners and other individuals who may not have previously been considered a qualifying parent of a child will now be deemed to meet this revised definition and be entitled to FMLA leave.

In the interpretation provisions expressing that a child can have an unlimited number of 'parents' for FMLA purposes, the DOL uses an example of a heterosexual couple that divorces and each remarries. Under this example, the child would have four 'parents' without any qualification. Although this would be the case under traditional interpretation of the FMLA if the step-parents served in 'loco parentis,' it had not been determined to apply to step-parents who did not serve in this role.

Another example would be an aunt who is caring for her niece and nephew when their single parent has been called to active military duty, allowing the aunt to exercise her rights to family leave. Also, a grandmother who assumes responsibility for her sick grandchild when her own child becomes debilitated will be able to seek FMLA leave from her employer. Finally, an employee who plans to share in the parenting of a child with his or her same-sex partner will be able to exercise the right to FMLA leave to bond with that child.

If an employer has questions about whether an employee's relationship to a child is covered under FMLA, they may require the employee to provide reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as 'in loco parentis' where there is no legal or biological relationship.

January 1, 2011

Health Care Reform Notification and Communication Requirements

The health care reform law comes with new notification and communication requirements that began this year and span across the next few years.

 

There are seven key health care reform notices that you should become aware of so that you can incorporate them into your benefits communication strategy at the appropriate time:

The Notice of key plan design changes is effective, for most employers, on 1-1-2011- There are three areas for which the DOL has issued some sample language:

·         Annual and lifetime limit changes,

·         Revised dependent eligibility for older kids ,

·         Primary care physician designation and OB/GYN self referral change.

 

Annual and Lifetime limit changes - Plans and issuers are required to give written notice that the lifetime limit on the dollar value of all benefits no longer applies and that an individual, if covered, is once again eligible for benefits under the plan.  Additionally, if the individual is not enrolled in the plan or health insurance coverage, or if an enrolled individual is eligible for but not enrolled in any benefit package under the plan or health insurance coverage, then the plan or issuer must also give such an individual an opportunity to enroll that continues for at least 30 days (including written notice of the opportunity to enroll).  The notices and enrollment opportunity must be provided beginning not later than the first day of the first plan year beginning on or after September 23, 2010.  For individuals who enroll under this opportunity, coverage must take effect not later than the first day of the first plan year beginning on or after September 23, 2010.

 

These notices may be provided to an employee on behalf of the employee's dependent.  In addition, the notices may be included with other enrollment materials (print or online) that a plan distributes to employees, provided the statement is prominent.  For either notice, if a notice satisfying the requirements is provided to an individual, the obligation to provide the notice with respect to that individual is satisfied for both the plan and the issuer.  

The following model language can be used to satisfy the notice requirement: 

The lifetime limit on the dollar value of benefits under [Insert name of group health plan or health insurance issuer] no longer applies.  Individuals whose coverage ended by reason of reaching a lifetime limit under the plan are eligible to enroll in the plan.  Individuals have 30 days from the date of this notice to request enrollment.  For more information contact the [insert plan administrator or issuer] at [insert contact information]. For more information regarding the sample language or other resources go to http://www.dol.gov/ebsa. 

 

Revised dependent eligibility for older kids - The interim final regulations extending dependent coverage to age 26 provide transitional relief for a child whose coverage ended, or who was denied coverage (or was not eligible for coverage) under a group health plan or health insurance coverage because, under the terms of the plan or coverage, the availability of dependent coverage of children ended before the attainment of age 26.  The regulations require a plan or issuer to give such a child an opportunity to enroll that continues for at least 30 days (including written notice of the opportunity to enroll), regardless of whether the plan or coverage offers an open enrollment period and regardless of when any open enrollment period might otherwise occur. This enrollment opportunity (including the written notice) must be provided not later than the first day of the first plan year beginning on or after September 23, 2010.  The notice may be included with other enrollment materials that a plan distributes, provided the statement is prominent.  Enrollment must be effective as of the first day of the first plan year beginning on or after September 23, 2010.   

The following model language can be used to satisfy the notice requirement:

Individuals whose coverage ended, or who were denied coverage (or were not eligible for coverage), because the availability of dependent coverage of children ended before attainment of age 26 are eligible to enroll in [Insert name of group health plan or health insurance coverage].  Individuals may request enrollment for such children for 30 days from the date of notice.  Enrollment will be effective retroactively to [insert date that is the first day of the first plan year beginning on or after September 23, 2010.]   For more information contact the [insert plan administrator  or issuer] at [insert contact information]. 

Primary care physician designation and OB/GYN self referral change - When applicable, it is important that individuals enrolled in a plan or health insurance coverage know of their rights to (1) choose a primary care provider or a pediatrician when a plan or issuer requires designation of a primary care physician; or (2) obtain obstetrical or gynecological care without prior authorization.  Accordingly, the interim final regulations regarding patient protections under section 2719A of the Affordable Care Act require plans and issuers to provide notice to participants of these rights when applicable.  The notice must be provided whenever the plan or issuer provides a participant with a summary plan description or other similar description of benefits under the plan or health insurance coverage.  This notice must be provided no later than the first day of the first plan year beginning on or after September 23, 2010. 

The following model language can be used to satisfy the notice requirement: 

For plans and issuers that require or allow for the designation of primary care providers by participants or beneficiaries, insert: 

[Name of group health plan or health insurance issuer] generally [requires/allows] the designation of a primary care provider.  You have the right to designate any primary care provider who participates in our network and who is available to accept you or your family members.  [If the plan or health insurance coverage designates a primary care provider automatically, insert: Until you make this designation, [name of group health plan or health insurance issuer] designates one for you.]  For information on how to select a primary care provider, and for a list of the participating primary care providers, contact the [plan administrator or issuer] at [insert contact information].  

For plans and issuers that require or allow for the designation of a primary care provider for a child, add:  

For children, you may designate a pediatrician as the primary care provider. 

For plans and issuers that provide coverage for obstetric or gynecological care and require the designation by a participant or beneficiary of a primary care provider, add: 

You do not need prior authorization from [name of group health plan or issuer] or from any other person (including a primary care provider) in order to obtain access to obstetrical or gynecological care from a health care professional in our network who specializes in obstetrics or gynecology.  The health care professional, however, may be required to comply with certain procedures, including obtaining prior authorization for certain services, following a pre-approved treatment plan, or procedures for making referrals.  For a list of participating health care professionals who specialize in obstetrics or gynecology, contact the [plan administrator or issuer] at [insert contact information]. 

Year 2012:

 

Summary of material changes: In 2012 companies will need to send a written summary of any plan changes at least 60 days prior to the beginning of their plan year.  So if you plan on making changes to your plan design as you write your SPDs beware!

 

Enrollment materials should be sent out 60 days in advance, describing changes, and not make any changes to the design after that.

 

By March 23, 2011, the Secretary of Health and Human Services (HHS) will develop standards for compliance.  These notices will be required by March 23, 2012.

 

Summary of material coverage: A summary of medical plans will need to be created.  It is sometimes called a "uniform explanation of coverage." The summary must include specific content and definitions, be no longer than four pages and be written in simple language (both "linguistically" and "culturally") that your target audience will clearly understand, and the font be no smaller than 12 point. 

 

HHS will issue more complete requirements by next March.  Questions to keep in mind, Can this requirement be satisfied online through a benefits website? Will each plan option need to be a separate summary - including all retiree plans? And, could this be satisfied earlier in enrollment communications? 

Summary of your plan's care management programs:  Language needs to be provided to participants with self-insured plans, including case and disease management and wellness and administrative programs to improve patient safety. If a company offers fully-insured plans, the administrator will handle this requirement.  Content must be presented to employees by March 23, 2012.  In practice, you may merge this requirement with your 2013 enrollment communications (for plan years that begin January 1) and to all new hires thereafter.  Standards for compliance will be issued by March 23, 2011 by HHS.

 

Year 2013:

 

Notice of automatic enrollment likely in 2013: Employees and new hires must be notified that they are being enrolled automatically in medical coverage and what they need to do to opt-out.  HHS will have more information on this in the future.

 

Notice of eligibility for health insurance exchange: A key change in health care reform is an employee's choice, if eligible, to choose a plan from a state-run exchange.  Starting March 1, 2013, all employees and new hires must be informed of the new exchange.  Companies will need to provide a print notice with information about the exchange and an employee's ability to shop for coverage.  The notice should include eligibility rules for premium credits and the differences between the exchange plan and employer-sponsored plan.

 

States will most likely establish their exchanges in 2013 so that Americans can comply with the individual mandate for January 1, 2014 coverage.  Some important questions to think about:  Will enrollment timeframes be consistent across all states? What consumer educational materials will be available?  

Lastly, Description of claims process:  Companies will need to explain their new claims process in simple language (both "linguistically" and "culturally") and notify participants of any state health insurance ombudsman.  HHS will provide details on an external claims review process required of self-insured plans, including clarification on:  if grandfathered plans are impacted, when plan sponsors must comply, SPD language for claims and appeals process if different, delivery method to participants.

 

This is a great time to review your enrollment communications and assist your employees to become better health care consumers and to become more aware of the company's investment in benefits. 

 

 

 What would you like to see in a future issue?

Contact our office with your suggestions.

 

Interviewees Say The Darndest Things

Hiring managers were asked to share the craziest thing they've ever heard in an interview with CareerBuilder.com. Do you have any for the list?

•  "I remember interviewing a secretary some years ago and asking her 'What is important to you in a job?' Her answer was: 'I want to work close to Bloomingdales.'" -- Bettina Seidman, career management coach, SEIDBET Associates
• "'When your work load is heavy and you are overwhelmed, how do you handle the stress?' 'I run in the bathroom and cry.'" -- Jessica Simko, Career Branding Guide
• "We recently asked a job candidate, 'what do you know about us?' He leaned back in his chair and replied, 'Not much. Why don't you fill me in?' He wasn't hired." -- John Kramb, Adams County Winery
• "The interview was for a highly visible administrative assistant position. Clearly, I was looking for someone who would exercise tact with top-caliber people who would come into our office. I opened the interview with a fairly standard question: 'What is it that attracts you to this job the most?' Without hesitation, she replied, 'My mother thinks this will be the right job for me.'" -- Bill Lampton, president, Championship Communication
•  "We have the standard lists of questions you'd expect to hear, but at any given moment, I'll interject with, 'If you were an animal, what animal would you be and why?' The most shocking response was, 'I'd be a cat so I can lay around all day and not have to do anything.'" -- Efrain Ayala, account executive, Walt Denny Inc., The Home Products Agency
• "One job candidate arrived late for the interview, in a not-so-gracious mood. 'The commute is terrible,' she said. 'I'm so glad I don't have to do this every day.'" -- Sammie Samuella Becker, CEO, TigressPR
•  "I interviewed a candidate over the phone for a sales position. Less than five minutes into the call, I began to hear water swishing and realized that the candidate was taking a bath during the phone interview." -- Jessica Miller-Merrell, SPHR, owner, Xceptional HR
• "I had a candidate come into my office with her child and proceed to breast feed her baby boy during the interview. There was no acknowledgment or mention from the woman I was interviewing about the baby or him eating." -- Miller-Merrell
• "An executive search recruiter was explaining the qualities needed for the job: multi-tasking, hard-working, time management skills, attention to detail, etc. The candidate responded with 'I can't do that. I'm not a robot.'" --Andrea Friedman, public relations coordinator, The LaSalle Network, a Chicago professional staffing and recruiting company
• "One of the funniest things an applicant said to me was in response to my question, 'What do you like in an office environment?' The applicant said, 'I like 42nd and Broadway.' Needless to say, that wasn't what I was asking, and that wasn't anywhere near our office location." -- Sharon Armstrong, author of "The Essential Performance Review Handbook"