DOL Proposes to Expand Electronic Delivery Methods for Group Health Plan Disclosures

The U.S. Department of Labor’s (DOL) Employee Benefits Security Administration has issued a proposed rule that would establish a new, additional safe harbor for group health plan administrators to use electronic media to provide plan disclosures required under the Employee Retirement Income Security Act (ERISA). The proposal aims to modernize the delivery of group health plan disclosures to reduce administrative burdens and improve participants’ ability to access and understand plan information.

Background

In 2002, the DOL established a safe harbor for using electronic media to satisfy ERISA’s delivery method requirements, including email, posting to a company website, and other electronic media. The safe harbor allows employers to distribute disclosures electronically to: (1) employees with work-related computer access; and (2) other plan participants and beneficiaries who consent to receive disclosures electronically. The safe harbor applies to ERISA disclosures such as summary plan descriptions, summaries of material modifications and summary annual reports, as well as certain other health plan notices, including the annual Women’s Health and Cancer Rights Act notice and the Medicare Part D notice. In 2020, the DOL established a separate, broader electronic disclosure safe harbor applicable to retirement plans.

Key Highlights

The proposed rule would add a new safe harbor for group health plan administrators to electronically deliver required disclosures, largely mirroring the 2020 retirement plan safe harbor. To rely on the safe harbor, plan administrators would be required to:

• Provide an initial notification to each covered individual prior to relying on the safe harbor, identifying the electronic address to be used, explaining how to access covered documents, and describing their right to opt out of electronic delivery and request free paper copies. The notice may be furnished electronically to individuals previously receiving documents under the 2002 safe harbor.
• Furnish a Notice of Internet Availability (NOIA) for each covered document (including documents only required to be furnished upon request) informing covered individuals of their paper copy and opt-out rights. The NOIA must be furnished electronically to a covered individual’s designated address or internet-connected mobile device (e.g., smartphone), contain only the content specified in the proposal, and be delivered separately from other documents or disclosures (but this requirement can be simplified by using a combined annual NOIA covering multiple documents if certain requirements are satisfied).
• Establish and maintain a website where covered individuals can access covered documents, taking measures reasonably calculated to ensure the site meets specified standards for timing, presentation and confidentiality.
• Promptly provide a free paper copy of any covered document upon request.

Unlike the 2020 retirement plan safe harbor, email delivery is not available under this proposal, as many ERISA group health plan disclosures contain sensitive information, including protected health information.

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