Non-federal governmental plans may omit language describing how participants can seek remedies under ERISA in notices to be given when the plan makes an adverse decision. Notices of adverse benefit determinations are required as part of health reform’s claims appeal and external review rules.
Such plans need not include the language because ERISA remedies are not available for participants of non-federal government health plans, because they are regulated by the Public Health Service Act, and not ERISA. Accordingly, the federal Employee Benefit Security Administration is not there to serve such plans, and in some cases, even state insurance departments do not process their complaints, the U.S. Department of Health and Human Services stated in guidance on Aug. 17.
Therefore, HHS will not enforce the requirement that non-federal governmental plans provide contact information for the EBSA or a state insurance department in the adverse notices.
In the June 2011 claims procedure rules, plan denials must be accompanied with a notice of adverse benefit determination, and that notice has to contain language informing the participant of his or her right to bring civil action under ERISA, to recover benefits due, to enforce rights or clarify rights to future benefits under the plan. They also must include phone numbers for local EBSA offices and state departments of insurance.
A notice of adverse benefit determination for ERISA plans was released by the government for plans to use to inform participants of benefit denials when such situations arise.
Technical Release 2011-02 further describes requirements under the claims appeals and external review rules. The rules promulgated under reform are similar, but more stringent than claims and appeals rules already in effect.
For additional information about health reform, see Thompson’s employee benefits library including the Employer’s Guide to Self-Insuring Health Benefits.