Employers Have Until October 1st to Comply with Affordable Care Act's Notice Requirements
May 28, 2013
By: Rachel D. Gebaide and Timothy C. Haughee
The Patient Protection and Affordable Care Act (the “Affordable Care Act”) represents the most substantial overhaul of the nation’s healthcare system in decades. Much of the Affordable Care Act is meant to expand access to affordable health insurance coverage, including provisions for coverage to be offered through a Health Insurance Marketplace (the “Marketplace”) beginning in 2014. As part of the overhaul, the Affordable Care Act requires most employers to provide written notice to their employees of coverage options available through the Marketplace and to give employees information regarding the coverage, if any, offered by the employer.
The United States Department of Labor (“DOL”) recently issued a Technical Release, which provides temporary guidance regarding the notice requirement and announces the availability of the Model Notice to Employees of Coverage Options. The Technical Release can be obtained from the following link to the DOL’s website: www.dol.gov/ebsa/newsroom/tr13-02.html.
Notice to Employees Under the Affordable Care Act
Beginning October 1, 2013, most employers must give a written notice to each employee,  regardless of plan enrollment status or the employee’s status as a part-time or full-time employee, with the following information:
- The notice must include information regarding the existence of the new Marketplace as well as contact information and a description of the services provided by the Marketplace
- The notice must inform the employee that the employee may be eligible for a premium tax credit under section 36B of the Internal Revenue Code if the employee purchases a qualified health plan through the Marketplace
- The notice must include a statement informing the employee that if the employee purchases a qualified health plan through the Marketplace, the employee may lose the employer contribution (if any) to any health benefits plan offered by the employer and that all or a portion of such contribution may be excludable from income for federal income tax purposes
Employers must provide the notice to current employees no later than October 1, 2013 when “open enrollment” begins for coverage through the Marketplace. For new employees, employers must provide the notice at the time of hiring beginning October 1, 2013. For 2014, if the notice is provided within 14 days of an employee’s start date, the DOL will consider the notice to be provided at the time of hiring.
The notice must be provided to employees in writing. The notice may be sent via first class mail or it may be provided electronically as long as the requirements of the DOL’s electronic disclosure safe harbor are met. Employers may not charge their current employees or new hires a fee for providing the notice.
To assist employers with complying with the notice requirement, the DOL has drafted two model notices that meet the notice content requirements discussed above. The model notice for employers who do not offer a health plan is available at the following link: www.dol.gov/ebsa/pdf/FLSAwithoutplans.pdf. The model for employers who do offer a health plan to some or all of their employees is available at the following link: www.dol.gov/ebsa/pdf/FLSAwithplans.pdf.
Updated Model Election Notice Under COBRA
Under COBRA, a group health plan administrator must provide qualified beneficiaries with an election notice describing their rights to continuation of health insurance coverage and how to make an election. A “qualified beneficiary” is an individual who was covered by a group health plan on the day before the occurrence of a qualifying event, such as termination of employment or reduction in hours that causes loss of health insurance coverage under the group health plan.
The DOL’s Technical Release includes a revised COBRA model election notice to help make qualified beneficiaries aware of other coverage options available in the Marketplace. Upon the group health plan administrator filling in the blanks in the model election notice with the appropriate plan information and using the notice, the DOL will consider the use of the model notice to be good faith compliance with the election notice content requirements of COBRA. Employers should begin using the model election notice immediately.
The COBRA model election notice can be obtained from the following link to the DOL’s website: www.dol.gov/ebsa/cobra.html.
If you have questions regarding the Technical Release or the notice requirements under the Affordable Care Act or COBRA, please contact Rachel Gebaide, Tim Haughee, or any other member of the firm’s Labor & Employment Law Group.
 Employers are not required to provide a separate notice to employees’ dependents or other individuals who are or may become eligible for coverage under the plan but who are not employees of the employer.