Providing SBCs to Employees

Question:  What are the requirements for providing SBCs to employees?

Short Answer: The ACA sets forth specific rules governing when, what, how and to whom employers must provide SBCs.

What is the SBC?

The ACA added the Summary of Benefits and Coverage (SBC) document requirement for group health plans and insurance carriers to provide participants and beneficiaries with a short document in uniform format describing the benefits and coverage offered under the plan.

Although ERISA already required plans to provide a Summary Plan Description (SPD) requirement prior to the SBC, SPDs are typically long, complex, and difficult to use a tool to compare different plan options.  The SBC is designed to address those SPD shortcomings in a separate, additional document.  The SPD requirements remain unchanged by the ACA.

The SBC thereby serves two primary purposes that make it differ significantly from SPDs:

  1. Short: The SBC cannot exceed four double-sided pages; and
  2. Uniform: Permits easy apple-to-apples comparisons for among and between employer-sponsored group health plans and individual policies on the Exchange.

For full details, see our ABD Office Hours Webinar: Summary of Benefits and Coverage (SBC).

When to Provide the SBC

  1. Initial Enrollment for New Hires or Newly Eligible Employees
    • Employers must provide as part of any written application materials distributed for enrollment.
    • If the employer does not use written application materials for enrollment, the employer must provide no later than the first date the participant is eligible.
    • The employer is not required to provide the SBC if it has already provided it upon request and there has been no change since previously provided.
  2. Special Enrollment
  3. Open Enrollment
    • Employers must provide no later than the date it distributes written open enrollment materials.
    • If the plan has evergreen (i.e., continuing) elections, employers must provide the SBC no later than 30 days prior to the first day of the new plan year.
    • For fully insured plans not finalized before the 30-day period, employers must provide the SBC no later than seven business days after policy issuance or receipt of written confirmation.
  4. Upon Request at Any Time
    • Employers must provide as soon as practicable, but in no event later than seven business days following receipt of the request

What to Provide

  1. Initial Enrollment for New Hires or Newly Eligible Employees
    • The SBC for each benefit package (i.e., plan option) offered by the plan for which the employee is eligible.
  2. Special Enrollment
    • The SBC for each benefit package (i.e., plan option) offered by the plan for which the employee is eligible.
  3. Open Enrollment
    • Currently Enrolled Employees: Only the new SBC for the benefit package (i.e., plan option) in which the employee is currently enrolled is required (SBCs for the other plan options must still be available upon request).
    • Not Currently Enrolled Employees: The SBC for each benefit package (i.e., plan option) offered by the plan for which the employee is eligible.
  4. Upon Request at Any Time
    • The SBC for each benefit package (i.e., plan option) offered by the plan for which the employee is eligible.

How to Provide: Where Employer Has Online Enrollment

The SBC rules add special new electronic disclosure safe harbors that apply only to distribution of the SBC:

  1. Online Enrollment

Where the employer has online enrollment, the employer may distribute the SBC electronically in connection with the online enrollment to any employee.  This special expanded electronic disclosure safe harbor for SBCs applies only for employees enrolling online (initial enrollment or open enrollment) where the SBCs are made available to the employee as part of the employee’s online enrollment process.

2. Online Requests

Employers may also distribute the SBC electronically in response to an online request for the SBC from an employee or dependent.

The SBC must always be available in paper form free of charge upon request.

How to Provide: Where Employer Does Not Have Online Enrollment

Where the employer does not have an online enrollment process (or for groups of employees that do not enroll through the online enrollment system) more restrictive SBC electronic disclosure rules apply:

3. Covered Employees

For covered employees, the standard ERISA electronic disclosure rules apply.

The standard electronic disclosure safe harbor generally requires:

  1. The employee has work-related computer access that is integral to his or her job duties (e.g., employee works at a desk with a computer); or
  2. The employee’s affirmative electronic consent to electronic disclosure (i.e., opt-in to electronic distribution).

Full details here: ERISA Electronic Disclosure Rules.

4. Eligible But Not Enrolled Employees

For employees who are eligible but have not enrolled in the plan, the employer may distribute the SBC electronically provided:

  1. The format is readily accessible; and
  2. If the SBC is provided on the internet, the employer must timely notify the employee in paper form (e.g., a postcard) or by email that the documents are available on the internet, including the internet address and notice that SBCs are available in paper form upon request.

The SBC must always be available in paper form free of charge upon request.

Who Must Receive the SBC

Unlike the rules that apply to SPD and SMM distributions, the SBC rules provide that both employees and dependents have the right to receive SBCs.

Major Carve Out: There is no requirement to separately provide SBCs to dependents if the dependent’s last known address is the same as the employee.

This means that if a dependents’ last known address is different from the employee’s last known address, the employer must provide separate SBCs to the dependent at the dependent’s address.

Potential Penalties

An employer that willfully fails to provide SBCs in accordance with the SBC rules is subject to a fine of up to $1,176 per failure.  A failure with respect to each employee or dependent constitutes a separate offense.  For example, the employer could be liable for a penalty of up to $4,704 for failure to provide SBCs to a family of four.

Good Faith Enforcement Safe Harbor: The Tri-Agencies (DOL/IRS/HHS) have stated that they “will not impose penalties on plans and issuers that are working diligently and in good faith to provide the required SBC content in an appearance that is consistent with the [SBC rules].”  In May 2014, the Tri-Agencies stated that this good faith enforcement safe harbor from potential penalties applies “until further guidance is issued.”  No further guidance has overturned the safe harbor.

Reminder: New SBC in 2021

The DOL has posted is revised SBC and associated materials for use starting with the open enrollment period for plan years beginning on or after January 1, 2021.

The new SBC templates and materials are available here: https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/affordable-care-act/for-employers-and-advisers/summary-of-benefits

For full details on all of the SBC rules, see our ABD Office Hours Webinar: Summary of Benefits and Coverage (SBC).

Regulations

29 CFR §2590.715-2715(e):

(e) Failure to provide.

Failure to provide. A group health plan that willfully fails to provide information under this section to a participant or beneficiary is subject to a fine of not more than $1,000 (adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended) for each such failure. A failure with respect to each participant or beneficiary constitutes a separate offense for purposes of this paragraph (e). The Department will enforce this section using a process and procedure consistent with §2560.502c-2 of this chapter and 29 CFR part 2570, subpart C.

85 Fed. Reg. 2292,2301 (Jan. 15, 2020):

https://www.govinfo.gov/content/pkg/FR-2020-01-15/pdf/2020-00486.pdf

Failure to provide Summary of Benefits Coverage under PHS Act section 2715(f), as incorporated in ERISA section 715 and 29 CFR 2590.715– 2715(e): $1,176

Tri-Agency ACA FAQ Part IX:

https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-ix.pdf

Q8: Under what circumstances can penalties be imposed for failure to provide the SBC or the uniform glossary?

PHS Act section 2715(f) states that an entity is subject to a fine if the entity “willfully fails to provide the information required under this section.”

As stated in previous FAQs,3 the Departments’ basic approach to ACA implementation is: “[to work] together with employers, issuers, States, providers and other stakeholders to help them come into compliance with the new law and [to work] with families and individuals to help them understand the new law and benefit from it, as intended. Compliance assistance is a high priority for the Departments. Our approach to implementation is and will continue to be marked by an emphasis on assisting (rather than imposing penalties on) plans, issuers and others that are working diligently and in good faith to understand and come into compliance with the new law.” Accordingly, consistent with this guidance, during this first year of applicability, the Departments will not impose penalties on plans and issuers that are working diligently and in good faith to comply.

Tri-Agency ACA FAQ Part XIX:

https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/aca-part-xix.pdf

Q8: Certain specific safe harbors and other enforcement relief were provided by the Departments related to the requirement to provide an SBC and a uniform glossary for the first and second years of applicability. Will this relief be extended?

Yes…Until further guidance is provided, previously-issued enforcement and transition relief guidance continues to apply with respect to:

Affordable Care Act Implementation FAQs Part IX, Q8 (regarding penalties for failure to provide the SBC or uniform glossary).

 

Disclaimer: The intent of this analysis is to provide the recipient with general information regarding the status of, and/or potential concerns related to, the recipient’s current employee benefits issues. This analysis does not necessarily fully address the recipient’s specific issue, and it should not be construed as, nor is it intended to provide, legal advice. Furthermore, this message does not establish an attorney-client relationship.  Questions regarding specific issues should be addressed to the person(s) who provide legal advice to the recipient regarding employee benefits issues (e.g., the recipient’s general counsel or an attorney hired by the recipient who specializes in employee benefits law).

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