November 2014

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This publication has been developed by the 

U.S. Department of Labor, Employee Benefits 

SecurityAdministration (EBSA). To view this and 

other EBSA publications, visit the agency’s Website at 

dol.gov/ebsa. 

To order publications or to request assistance from a

benefits advisor, contact us electronically at

askebsa.dol.gov. 

Or call toll free 1-866-444-3272. 

This material is available in alternative format to 

persons with disabilities upon request: 

Voice phone: (202) 693-8664 

TDD: (202) 501-3911

This publication constitutes a small entity 

compliance guide for purposes of the 

Small Business Regulatory Enforcement 

FairnessAct of 1996.
This publication has been developed by the 

U.S. Department of Labor, Employee Benefits 

SecurityAdministration (EBSA). To view this and 

other EBSA publications, visit the agency’s Website at 

dol.gov/ebsa. 

To order publications or to request assistance from a

benefits advisor, contact us electronically at

askebsa.dol.gov. 

Or call toll free 1-866-444-3272. 

This material is available in alternative format to 

persons with disabilities upon request: 

Voice phone: (202) 693-8664 

TDD: (202) 501-3911

This publication constitutes a small entity 

compliance guide for purposes of the 

Small Business Regulatory Enforcement 

FairnessAct of 1996.

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Introduction............................................................................................... 

The Affordable Care Act..........................................................................

HIPAA Portability Provisions................................................................ 

Special Enrollment........................................................................

Nondiscrimination Requirements..............................................

HIPAA and the Affordable Care Act Wellness 

Program Requirements............................................................................

The Genetic Information Nondiscrimination Act..............................

Mental Health Parity Provisions............................................................

The Newborns’ and Mothers’ Health Protection Act.........................

The Women’s Health and Cancer Rights Act......................................

Applying and Enforcing Laws in Part 7 of ERISA.............................

Appendices

Appendix A: Self-Compliance Tools..............................................

Appendix B: Chart of Required Notices........................................

Appendix C: Model Notices..........................................................

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27

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49

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57

61

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137

Table of Contents

Health Benefits Coverage Under Federal Law addresses the following laws that 

can affect the health benefits coverage provided by group health plans:

The Patient Protection and Affordable Care Act (Affordable Care Act)

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) 

(portability and nondiscrimination provisions only)

The Mental Health Parity and Addiction Equity Act (MHPAEA) and the 

Mental Health Parity Act (MHPA) (Mental Health Parity Provisions)

The Newborns’ and Mothers’ Health Protection Act of 1996 (the 

Newborns’ Act)

The Women’s Health and Cancer Rights Act of 1998 (WHCRA)

The Genetic Information Nondiscrimination Act of 2008 (GINA)

These health care laws are included in Part 7 of Title I of the Employee 

Retirement Income Security Act of 1974 (Part 7 of ERISA). Also discussed 

in this booklet are provisions of the Children’s Health Insurance Program 

Reauthorization Act (CHIPRA) related to special enrollment rights, which are 

included as part of the HIPAA Special Enrollment section on page 19.

The rules described in the following pages generally apply to group health 

plans and group health insurance issuers (i.e., insurance companies). References 

in this booklet are generally limited to “group health plans” or “plans” for 

convenience. In addition, the booklet will help employers, plan sponsors, plan 

administrators, third-party administrators, and other service providers to comply 

with Part 7 of ERISA.

The requirements under Part 7 of ERISA generally apply to group health 

plans with two or more participants who are current employees. 1 However, if 

the coverage is insured, parallel provisions in the Public Health Service Act apply 

to health insurance coverage offered in connection with group health plans with 

as few as one employee who is a current participant under the plan. In addition, 

1

The Mental Health Parity and Addiction Equity Act as included in Part 7 of ERISA exempts 

group health plans of a small employer with 50 or fewer employees from its requirements. 

However, insured group health plans in the small group market are required to comply with the 

requirements of the Act in order to satisfy the essential health benefits requirements under the 

Affordable Care Act.

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Introduction

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the requirements of Part 7 of ERISA do not apply to excepted benefits, such as 

certain dental and vision coverage*.

The laws contained in Part 7 of ERISA (which is administered by the U.S. 

Department of Labor) generally also appear in the Internal Revenue Code 

(the Code), and the Public Health Service Act (PHSA). The Department of the 

Treasury and the Internal Revenue Service administer the requirements under 

the Code, and the U.S. Department of Health and Human Services (HHS) 

administers the requirements under the PHSA.

For ease of use, Health Benefits Coverage Under Federal Law is divided into 

four sections:

The first section includes general descriptions of the health care laws 

mentioned above and frequently asked questions.

Following are self-compliance tools that can help to determine a plan’s 

compliance with these laws. They include compliance tips that relate to 

some common mistakes. (Note: please check the Website at dol.gov/ebsa/

healthlawschecksheets.html for updates to the self-compliance tools.)

Next, a chart summarizes the notices a plan must provide.

Finally, the last section includes model notices providing language that 

may be used to comply with the various notice requirements.

While the booklet does not cover all the specifics of these laws, it does assist 

those involved in operating a group health plan to understand the laws and 

related responsibilities. It provides an informal explanation of the statutes and 

the most recent regulations and interpretations. The information is presented 

as general guidance, however, and should not be considered legal advice. In 

addition, some of the provisions discussed involve issues for which the rules 

have not yet been finalized as of the date of publication of this booklet. The 

proposed rules are noted. Periodically check the Department of Labor’s Website 

(dol.gov/ebsa) under “Laws & Regulations” for publication of final rules.

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*See the Applying and Enforcing Laws in Part 7 of ERISA Section at page 57 of the Guide for a further discussion.
Some general notes:

As discussed later, States can change some of these Federal rules if 

the State law is more protective of individuals (i.e., imposes stricter 

obligations on health insurance issuers).

If the plan provides benefits through an insurance policy or health 

maintenance organization (HMO), you also may contact your State’s 

insurance department. Visit the National Association of Insurance 

Commissioners’ Website at naic.org for contact information.

If you have questions not specifically addressed in this booklet, please 

contact the Employee Benefits Security Administration (EBSA) regional 

office nearest you. A list of these offices is on the agency’s Website at dol.

gov/ebsa (view “About EBSA”). Or you may contact EBSA electronically 

at askebsa.dol.gov or call toll free 1-866-444-3272.

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7

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The Affordable Care Act

The Patient Protection and Affordable Care Act (Affordable Care Act) was 

signed into law on March 23, 2010. The Affordable Care Act added certain market 

reform provisions to ERISA, making those provisions applicable to employment-based 

group health plans. These provisions provide additional protections for benefits under 

employment-based group health plans. They include extending dependent coverage to age 

26; prohibiting preexisting condition exclusions for all individuals and prohibiting the 

imposition of lifetime and annual limits on essential health benefits. As of 2014, most of 

the Affordable Care Act protections are now in effect. The Departments of Labor, Health 

and Human Services, and the Treasury (Departments) were tasked with issuing guidance 

for the market reform provisions. The Departments continue to work with employers, 

issuers, States, providers and other stakeholders to help them come into compliance with 

the law and are working with families and individuals to help them understand the law 

and benefit from it, as intended.

Under the Affordable Care Act, plans can make some routine changes and generally 

keep the coverage under their plan the same as it was on March 23, 2010. These 

grandfathered health plans are required to comply with some but not all of the market 

reform provisions under ERISA. 

What is grandfathered status and how does a grandfathered plan 

lose its status?

Generally, grandfathered plans are plans that were in existence, and in which 

at least one individual was enrolled, on March 23, 2010. Grandfathered health 

plans are exempt from many but not all Affordable Care Act market reforms. 

Grandfathered plans lose their status if the plan makes one of the following six 

changes:

1) Elimination of all or substantially all benefits to diagnose or treat a 

particular condition. 

2) Increase in a percentage cost-sharing requirement (e.g., raising an 

individual’s coinsurance requirement from 20% to 25%). 

3) Increase in a deductible or out-of-pocket maximum by an amount that 

exceeds medical inflation plus 15 percentage points. 

4) Increase in a copayment by an amount that exceeds medical inflation 

plus 15 percentage points (or, if greater, $5 plus medical inflation). 

5) Decrease in an employer’s contribution rate towards the cost of coverage 

by more than 5 percentage points. 

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6) Imposition of annual limits on the dollar value of all benefits below 

specified amounts. 

Additionally, plans must include a statement in any plan materials provided 

to a participant or beneficiary describing the benefits provided under the plan, 

that the plan or coverage believes it is a grandfathered health plan and it must 

provide contact information for questions and complaints.

Which provisions of the Affordable Care Act apply to a grandfathered 

health plan?

Grandfathered health plans are exempt from many, but not all Affordable Care 

Act market reforms. Some of the new provisions applicable to grandfathered 

plans include:

prohibition on preexisting condition exclusions

prohibition on excessive waiting periods

prohibition on lifetime/restricted annual limits

prohibition on rescissions

extension of dependent coverage

summary of benefits and coverage and uniform glossary

Some of the new provisions not applicable to grandfathered plans include:

coverage of preventive services

internal claims and appeals and external review

patient protections 

When do the provisions in the Affordable Care Act become 

applicable?

The following provisions became effective for plan years beginning on or after 

September 23, 2010. 

prohibition on preexisting condition exclusions - only for individuals 

under age 19

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prohibition on lifetime limits (and restrictions on annual limits)

prohibition on rescissions

coverage of preventive services

extension of dependent coverage

internal claims and appeals and external review

patient protections 

The Summary of Benefits and Coverage and Uniform Glossary requirement 

became effective as of September 23, 2012.

Other provisions became effective for plan years beginning on or after January 1, 

2014.

prohibition on preexisting condition exclusions - for all individuals

wellness programs

prohibition on excessive waiting periods

prohibition on annual limits

Can plans require dependent children to be full-time students in 

order to receive coverage to the age of 26? 

No. Plans that offer dependent coverage for children are required to make the 

coverage available until a child reaches the age of 26. Plans and issuers that offer 

dependent coverage of children must offer coverage to enrollees’ adult children 

until age 26, even if the young adult no longer lives with his or her parents, is not 

a dependent on a parent’s tax return, or is no longer a student. This provision 

applies to all group health plans regardless of grandfather status and became 

effective for plan years beginning on or after September 23, 2010. 

Can plans impose preexisting condition exclusions on new 

enrollees? 

No. Group health plans are prohibited from imposing any preexisting condition 

exclusion. This prohibition generally is effective for plan years beginning on 

or after January 1, 2014, but for enrollees who are under 19 years of age, this 

prohibition became effective for plan years beginning on or after September 23, 

2010. This provision applies to all group health plans regardless of grandfathered 

status. 

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Can plans place lifetime or annual limits on the dollar value of 

essential health benefits? 

Generally group health plans are prohibited from offering coverage that 

establishes any lifetime or annual limits on the dollar value of essential health 

benefits. This prohibition became effective for plan years beginning on or after 

September 23, 2010 for lifetime limits and January 1, 2014 for annual limits. 

For more information regarding what benefits are considered essential health 

benefits, visit HealthCare.gov. This provision applies to all group health plans 

regardless of grandfathered status. 

Are plans prohibited from rescinding group health plan coverage?

In general, a rescission is a retroactive cancellation of coverage. A group health 

plan or a health insurance issuer can only rescind coverage in the case of fraud 

or an intentional misrepresentation of a material fact, regardless of whether the 

coverage is insured or self-insured, or whether the rescission applies to an entire 

group or only to an individual within the group. Plans and issuers must provide 

at least 30 days advance written notice to each participant who would be affected 

by the rescission. The prohibition against rescissions became applicable for plan 

years beginning on or after September 23, 2010 and applies to all group health 

plans regardless of grandfathered status.

Are plans required to provide preventive services?

Group health plans must provide benefits for certain recommended preventive 

services and generally may not impose any cost-sharing for such services. The 

recommended services, including immunizations and colonoscopies, are set 

forth by the United States Preventive Services Task Force (USPSTF), the Health 

Resources and Services Administration (HRSA) and the Advisory Committee 

on Immunization Practices (ACIP) of the Centers for Disease Control and 

Prevention. A complete list of recommendations and guidelines that specify 

the services that are required to be covered can be found at HealthCare.gov/

center/regulations/prevention.html. The preventive services provision became 

applicable for plan years beginning on or after September 23, 2010, and does not 

apply to grandfathered plans. 

My plan requires participants to designate, among others, a 

primary care provider. Is my plan required to comply with certain 

requirements related to this designation?

If a group health plan requires the participant to choose a participating primary 

care provider, the plan or issuer must allow the participant to choose any 

participating primary care provider who is available to accept the participant. 

With respect to a child, the plan or issuer must allow the designation of a 

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pediatrician as a child’s primary care provider if the provider participates in the 

network of the plan or issuer. Furthermore, plans or issuers may not require 

authorization or referral for a female participant who seeks coverage for OB/

GYN care provided by an OB/GYN specialist. The plan must provide a notice 

informing the participants of the terms of the plan or health insurance coverage 

regarding designation of a primary care provider. This provision became 

applicable for plan years beginning on or after September 23, 2010, and does not 

apply to grandfathered health plans. 

Can plans continue to limit payments for out-of-network emergency 

room services?

A group health plan that provides emergency services benefits must cover 

emergency services without preauthorization, even if the hospital or provider 

is out-of-network. If the emergency services are provided out-of-network, 

special rules related to cost-sharing requirements apply. Copayment amount 

or coinsurance rates cannot exceed the cost-sharing requirements that would be 

imposed if the services were provided in-network. Additionally, any other costsharing requirement, such as a deductible or out-of-pocket maximum, can only 

be imposed with respect to out-of-network emergency services if the cost-sharing 

requirement generally applies to out-of-network benefits. This provision became 

applicable for plan years beginning on or after September 23, 2010, and does not 

apply to grandfathered health plans.

Are all employment-based wellness programs subject to Affordable 

Care Act requirements? 

No. Many employers offer a wide range of programs to promote health and 

prevent disease. For example, some employers may choose to provide or 

subsidize healthier food choices in the employee cafeteria, provide pedometers 

to encourage employee walking and exercise, pay for gym memberships, or ban 

smoking on employer facilities and campuses. A wellness program is subject to 

the Affordable Care Act and HIPAA nondiscrimination rules only if it is, or is 

part of, a group health plan. If an employer operates a wellness program separate 

from its group health plan(s), the program may be subject to other Federal 

or State nondiscrimination laws, but it is generally not subject to the HIPAA 

nondiscrimination regulations.

For a detailed discussion of the Affordable Care Act and HIPAA 

nondiscrimination requirements that may apply to wellness programs offered 

in connection with employment-based group health plan coverage, see page 27. 

These provisions apply to both grandfathered and non-grandfathered plans and 

became applicable for plan years beginning on or after January 1, 2014. 

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What requirements apply under the Affordable Care Act regarding 

the claims and appeals processes that must be made available under 

a group health plan? 

All group health plans must maintain internal claims and appeals processes set 

forth in the Department of Labor Claims Procedure rules. Additional protections 

were added to ensure that participants have access to an effective appeals 

process. The scope of adverse benefit determinations eligible for internal claims 

and appeals now includes a rescission of coverage. If an initial adverse benefit 

determination is an urgent care claim, the claimant must be notified of the benefit 

determination no later than 72 hours after the receipt of the claim. 

If the plan denies the claim after the internal appeal, the Affordable Care 

Act requires participants be given the opportunity to seek external review. 

Plans must implement an effective review process that meets the minimum 

requirements set forth in the regulations. The internal claims and appeals 

and external review provisions do not apply to grandfathered plans and are 

applicable for plan years beginning on or after September 23, 2010.

What is the Summary of Benefits and Coverage and when must it be 

provided?

Plans must provide a Summary of Benefits and Coverage (SBC) that accurately 

describes the benefits and coverage under the applicable plan. The SBC is a 

uniform template that uses clear, plain language to summarize key features 

of the plan, such as covered benefits, cost-sharing provisions and coverage 

limitations. Plans and issuers must provide the SBC to participants and 

beneficiaries at certain times (including with written application materials, at 

renewal, upon special enrollment and upon request). This provision became 

applicable, generally, for plan years beginning on or after September 23, 2012, 

and applies to all group health plans regardless of grandfathered status.

Can employers or plans require participants and beneficiaries to be 

in a waiting period before allowing them to enroll in a group health 

plan?

Any waiting period that exceeds 90 days is prohibited. A waiting period is 

defined as the period of time that must pass before coverage for an employee or 

dependent who is otherwise eligible to enroll under the terms of the plan can 

become effective. Eligibility conditions that are based solely on the lapse of a 

time period are permissible for no more than 90 days. This provision became 

applicable for plan years beginning on or after January 1, 2014, and applies to all 

group health plans regardless of grandfather status.

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What is the Marketplace and where can I learn more about it?

The Marketplace offers “one-stop shopping” for employees to find and compare 

private health insurance options that meet certain Federal requirements. It 

simplifies the search for individual health insurance by gathering all of the health 

plan options into one Website and presenting the price and benefit information 

in simple terms. By purchasing insurance in the Marketplace, some employees 

may be eligible for a tax credit that lowers monthly premiums or out-of-pocket 

expenses. Persons eligible for COBRA due to a loss of employer-sponsored 

coverage may choose to purchase less expensive coverage from the Marketplace 

and may also qualify for the tax credits. Employees can also apply for Federal 

health coverage programs such as Medicaid and the Children’s Health Insurance 

Program through the Marketplace. For more information on the Marketplace, 

visit HealthCare.gov. 

Where can I get more information about the Affordable Care Act?

For more detailed information regarding the requirements under the Affordable 

Care Act, visit the Employee Benefits Security Administration’s Affordable Care 

Act Web page at dol.gov/ebsa/healthreform or contact 1-866-444-3272. 

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The Health Insurance Portability and Accountability Act of 1996 (HIPAA) 

includes provisions of Federal law governing health coverage portability, health 

information privacy, administrative simplification, medical savings accounts, and longterm care insurance. The responsibility of the Department of Labor and the subject of this 

segment of the booklet are the law’s portability and nondiscrimination requirements.

HIPAA’s provisions affect group health plan coverage in the following ways:

Provide certain individuals special enrollment rights in group health coverage 

when specific events occur, e.g., birth of a child (regardless of any open season);

Prohibit discrimination in group health plan eligibility, benefits, and premiums 

based on specific health factors; and

While HIPAA previously provided for limits with respect to preexisting 

condition exclusions, new protections under the Affordable Care Act now prohibit 

preexisting condition exclusions for plan years beginning on or after January 1, 

2014.2 1

2

For plan years beginning on or after January 1, 2014, plans are no longer required to issue the 

general notice of preexisting condition exclusion and individual notice of period of preexisting condition exclusion. Plans are also no longer required to issue certificates of creditable coverage after 

December 31, 2014. These amendments were made because plans are prohibited from imposing 

preexisting condition exclusions for plan years beginning on or after January 1, 2014.

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HIPAA

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Group health plans are required to provide special enrollment periods during 

which individuals who previously declined health coverage for themselves and their 

dependents may be allowed to enroll (regardless of any open enrollment period). In 

addition to HIPAA special enrollment rights, the Children’s Health Insurance Program 

Reauthorization Act (CHIPRA) added additional special enrollment rights under ERISA. 

Rights related to CHIPRA special enrollment are discussed in this section.

Special enrollment rights can occur when:

An individual loses eligibility for coverage under a group health plan or other 

health insurance coverage (such as an employee and his/her dependents’ loss of 

coverage under the spouse’s plan) or when an employer terminates contributions 

toward health coverage;

An individual becomes a new dependent through marriage, birth, adoption, or 

being placed for adoption; and

An individual loses coverage under a State Children’s Health Insurance Program 

(CHIP) or Medicaid, or becomes eligible to receive premium assistance under 

those programs for group health plan coverage.

Employees must receive a description of special enrollment rights on or before the 

date they are first offered the opportunity to enroll in the group health plan (see model 

notice on page 138).

In addition, employers that maintain a group health plan in a state with a CHIP or 

Medicaid program that provides for premium assistance for group health plan coverage 

must provide a notice (referred to as the Employer CHIP Notice) to all employees to 

inform them of possible opportunities in the state in which they reside (for information on 

a model Employer CHIP notice, see page 20). 

Some individuals losing coverage under an employment-based group health plan 

may want to consider enrolling for coverage in the Marketplace. For more information on 

the Marketplace, visit HealthCare.gov. 

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Special Enrollment 

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Can the special enrollment notice be provided in the Summary Plan 

Description (SPD)?

Yes, if the SPD is provided to the employee at or before the time the employee is 

initially offered the opportunity to enroll in the plan. If the SPD is provided at a later 

time, the special enrollment notice should be provided separately (for example, as 

part of the application for coverage).

How can the employer notice regarding premium assistance under 

Medicaid or CHIP (the Employer CHIP Notice) be provided?

Employers that maintain a group health plan are required to provide the Employer 

CHIP Notice if they provide medical care in a State that operates a Medicaid or 

CHIP premium assistance program. This notice may be provided with the SPD, 

enrollment packets or open season materials as long as these materials are provided 

no later than the date explained below, are provided to all employees, and are 

provided in accordance with the Department of Labor’s disclosure rules. The notice 

must be provided annually.

A model Employer CHIP Notice is available at dol.gov/ebsa/chipmodelnotice.doc. 

The model notice includes State contact information for States that provide Medicaid 

or CHIP premium assistance programs. This contact information will be updated 

periodically, therefore, be sure to check the EBSA Website for the most recent 

version.

Upon loss of eligibility for health coverage or termination of employer 

contributions for health coverage, what are a plan’s obligations to offer 

special enrollment?

When an employee or dependent loses eligibility for coverage under any group 

health plan or health insurance coverage, or if employer contributions toward group 

health plan coverage cease, a special enrollment opportunity may be triggered. 

The employee or dependent must have had health coverage when the group health 

plan benefit package was previously declined. If the other coverage was COBRA 

continuation coverage, special enrollment need not be made available until the 

COBRA coverage is exhausted.

For example, if an employee’s spouse declined coverage when previously offered 

due to coverage under her own employer’s plan, she and the employee must be 

offered a special enrollment opportunity when her coverage ceases under that plan 

or her employer terminates contributions to that plan.
Another example is if an employer offering two benefit package options, an 

HMO and an indemnity option, eliminates coverage under the indemnity option. 

Employees, spouses, and other dependents must be offered a special enrollment 

opportunity in the HMO option (and may also be eligible to special enroll in any 

other plan for which they are otherwise eligible, such as any plan offered by the 

spouse’s employer).

What are examples of a loss of eligibility for coverage?

Some examples of events that cause an individual to lose eligibility for health 

coverage (there are other reasons as well):

Divorce or legal separation;

A dependent is no longer considered a dependent under the plan;

Death of the employee covered by the plan;

Termination of employment;

Reduction in the number of hours of employment;

The plan decides to no longer offer any benefits to a class of similarly 

situated individuals; or

An individual in an HMO or other arrangement no longer resides, lives, 

or works in the service area.

If an employer terminates all contributions to a group health plan, 

but individuals have the option to continue coverage and pay 100 

percent of the cost themselves, would these individuals still have 

a special enrollment right because the employer has terminated 

contributions?

Yes. If all employer contributions have ended, individuals covered under the 

plan would have a special enrollment right, regardless of their option to continue 

coverage under the plan by paying the full cost of coverage.

If a plan has to offer a special enrollment period upon loss of 

eligibility or termination of employer contributions, how long must 

the special enrollment period run?

The plan has to provide at least 30 days for the employee or dependent to 

request coverage after the loss of other coverage or termination of employer 

contributions.

If an individual does request coverage within the 30-day period, the plan must 

make the coverage effective no later than the first day of the first calendar month 

beginning after the date the plan receives the enrollment request.

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Upon marriage, birth, adoption, or placement for adoption, what are a 

plan’s obligations to offer special enrollment?

Employees, as well as their spouses and dependents, may have special 

enrollment rights after a marriage, birth, adoption, or placement for adoption. 

In addition, new spouses and new dependents of retirees in a group health plan 

also may have special enrollment rights after these events.

The plan has to provide at least 30 days for the employee or dependents to 

request coverage after the occurrence of one of these events.

If the event was a marriage, the coverage is required to be effective no later than 

the first day of the first calendar month beginning after the date the completed 

request for enrollment is received by the plan.

In the case of birth, adoption, or placement for adoption, coverage is required to 

be effective no later than the date of the event.

If an employee or dependent loses coverage under CHIP or Medicaid, 

or becomes eligible for State premium assistance under those 

programs, what are a plan’s obligations to offer special enrollment?

A special enrollment opportunity is triggered if the employee or dependent who 

is otherwise eligible, but not enrolled in, a group health plan:

loses eligibility for coverage under a State Medicaid or CHIP program, or

becomes eligible for State premium assistance under a Medicaid or CHIP 

program.

The plan must provide at least 60 days for the employee or dependent to request 

coverage after the employee or dependent loses eligibility for coverage or 

becomes eligible for premium assistance.

Can States modify HIPAA’s special enrollment requirement?

Yes, in certain circumstances. States may require additional special enrollment 

periods with respect to insured group health plans. 

State laws related to health insurance issuers generally continue to apply except 

to the extent that such State law “prevents the application of” a requirement 

of Part 7 of ERISA. Therefore, if health coverage is offered through an HMO 

or an insurance policy, check with your State insurance department for more 

information on that State’s insurance laws.
Under HIPAA, individuals may not be denied eligibility or continued eligibility to 

enroll in a group health plan based on any health factors they may have. In addition, an 

individual may not be charged more for coverage than any similarly situated individual 

is being charged based on any health factor.

Note: Compliance with HIPAA’s nondiscrimination provisions does not in any 

way reflect compliance with any other provision of ERISA (including COBRA and 

ERISA’s fiduciary provisions). Nor does it reflect compliance with other State or Federal 

laws (such as the Americans with Disabilities Act).

What are the “health factors”?

They are:

health status;

medical condition, including both physical and mental illnesses;

claims experience;

receipt of health care;

medical history;

genetic information;

evidence of insurability; and

disability.

The term “evidence of insurability” includes conditions arising from acts of 

domestic violence, as well as participation in activities such as motorcycling, 

snowmobiling, all-terrain vehicle riding, horseback riding, skiing, and other 

similar activities.

Can a group health plan require an individual to pass a physical 

examination in order to be eligible to enroll in the plan?

No. A group health plan may not require an individual to pass a physical exam 

for enrollment, even if the individual is a late enrollee.

Can a plan require an individual to complete a health care 

questionnaire in order to enroll?

Yes, provided that the questionnaire does not ask for genetic information 

(including family medical history) and the health information is not used 

to deny, restrict, or delay eligibility or benefits, or to determine individual 

premiums.

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Nondiscrimination Requirements

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Can plans exclude or limit benefits for certain conditions or 

treatments?

Group health plans may exclude coverage for a specific disease, limit or exclude 

benefits for certain types of treatments or drugs, or limit or exclude benefits 

based on a determination that the benefits are experimental or medically 

unnecessary – but only if the benefit restriction applies uniformly to all similarly 

situated individuals and is not directed at individual participants or beneficiaries 

based on a health factor they may have. (Plan amendments that apply to all 

individuals in a group of similarly situated individuals and that are effective no 

earlier than the first day of the next plan year after the amendment is adopted 

are not considered to be directed at individual participants and beneficiaries.) 

Whether any plan provision or practice with respect to benefits complies with 

this rule under HIPAA does not affect whether the provision or practice is 

permitted under other laws including the Affordable Care Act. For example, 

the Affordable Care Act includes requirements related to coverage of certain 

preventive services.

Can a plan deny benefits otherwise provided for the treatment of an 

injury based on the source of that injury?

If the injury results from a medical condition or an act of domestic violence, 

a plan may not deny benefits for the injury – if it is an injury the plan would 

otherwise cover.

For example, a plan may not exclude coverage for self-inflicted injuries (or 

injuries resulted from attempted suicide) if the individual’s injuries are otherwise 

covered by the plan and if the injuries are the result of a medical condition (such 

as depression).

However, a plan may exclude coverage for injuries that do not result from a 

medical condition or domestic violence, such as injuries sustained in high-risk 

activities (for example, bungee jumping). But the plan could not exclude an 

individual from enrollment for coverage because the individual participated in 

bungee jumping.

Can a plan charge individuals with histories of high claims more than 

similarly situated individuals based on their claims experience?

No. Group health plans cannot charge an individual more for coverage than 

other similarly situated individuals based on any health factor.

How are groups of similarly situated individuals determined?

Distinctions among groups of similarly situated participants in a health plan 

must be based on bona-fide employment-based classifications consistent with the 
25

employer’s usual business practice. Distinctions cannot be based on any of the 

health factors noted earlier.

For example, part-time and full-time employees, employees working in different 

geographic locations, and employees with different dates of hire or lengths

of service can be treated as distinct groups of similarly situated individuals, 

with different eligibility provisions, different benefit restrictions, or different 

costs, provided the distinction is consistent with the employer’s usual business 

practice.

In addition, a plan generally may treat participants and beneficiaries as two 

separate groups of similarly situated individuals. The plan also may distinguish 

between beneficiaries based on, for example, their relationship to the plan 

participant (such as spouse or dependent child) or based on the age or student 

status of dependent children.

In any case, a plan cannot create or modify a classification directed at individual 

participants or beneficiaries based on one or more of the health factors.

Is it permissible for a health insurance issuer to charge a higher 

premium to one group health plan (or employer) that covers 

individuals, some of whom have adverse health factors, than it 

charges another group health plan comprised of fewer individuals 

with adverse health factors?

Yes. In fact, HIPAA does not restrict a health insurance issuer from charging a 

higher rate to one group health plan (or employer) over another. An issuer

may take health factors of individuals into account when establishing blended, 

aggregate rates for group health plans (or employers). This may result in one 

health plan (or employer) being charged a higher premium than another for the 

same coverage through the same issuer. Whether any plan provision or practice 

with respect to benefits complies with this rule under HIPAA does not affect 

whether the provision or practice is permitted under the Affordable Care Act 

(including the requirements related to community rating administered by HHS).

Can a health insurance issuer charge an employer different 

premiums for each individual within a group of similarly situated 

individuals based on each individual’s health status?

No. Issuers may not charge or quote an employer or group health plan separate 

rates that vary for individuals (commonly referred to as “list billing”) based on 

any of the health factors.

HIPAA does not prevent issuers from taking the current health status of 

each individual into account when establishing a blended, aggregate rate for 
26

providing coverage to the employment-based group overall. (However, the 

Affordable Care Act generally prohibits this practice with respect to small 

group insurance plans.) (Note: group health plans cannot adjust premium or 

contribution rates based on genetic information of one or more individuals in 

the group. For more information, refer to the section on GINA on page 33). Also, 

under the Affordable Care Act, the issuer may then charge the employer (or plan) 

a higher overall rate, or a higher blended per-participant rate.

While HIPAA prohibits list billing based on health factors, it does not restrict 

communications between issuers and employers (or plans) regarding the factors 

considered in the rate calculations.

Can a group health plan impose a nonconfinement clause (e.g., a 

clause stating that if an individual is confined to a hospital at the 

time coverage would otherwise take effect, coverage would not begin 

until that individual is no longer confined)?

No. A group health plan may not deny or delay an individual’s eligibility, 

benefits, or the effective date of coverage because that individual is confined to 

a hospital or other health care facility. In addition, a health plan may not set an 

individual’s premium rate based on that individual’s confinement.

Can a group health plan impose an “actively-at-work” provision (e.g., 

a requirement that an employee be actively at work after a waiting 

period for enrollment in order to have health coverage become 

effective on that day)?

No. Generally a group health plan may not refuse to provide benefits because 

an individual is not actively at work on the day that individual would otherwise 

become eligible for benefits. However, plans may have actively-at-work clauses 

if the plan treats individuals who are absent from work due to a health factor 

(for example, individuals taking sick leave) as if they are actively at work for 

purposes of health coverage.

Plans may require individuals to report for the first day of work before coverage 

may become effective. In addition, plans may distinguish among groups of 

similarly situated individuals in their eligibility provisions. For example, a plan 

may require an individual to work full time, such as 250 hours per quarter or 30 

hours per week, to be eligible for health plan coverage.

Is it permissible for a group health plan that generally provides 

coverage for dependents only until age 26 to continue health 

coverage past that age for disabled dependents?

Yes, a plan can treat an individual with an adverse health factor more favorably 

by offering extended coverage.
27

HIPAA and the Affordable 

Care Act Wellness Program

Requirements

The U.S. Departments of Labor, Health and Human Services and the Treasury issued final regulations on incentives for nondiscriminatory wellness programs in group 

health plans under the Affordable Care Act and the HIPAA nondiscrimination provisions. These rules apply to both grandfathered and nongrandfathered group health plans.

Are wellness programs provided in connection with a group health 

plan allowed under the Affordable Care Act and HIPAA?

The Affordable Care Act and HIPAA generally prohibit group health plans from 

charging similarly situated individuals different premiums or contributions or 

imposing different deductibles, copayment or other cost sharing requirements 

based on a health factor. However, there is an exception that allows plans to offer 

wellness programs.

There are two types of wellness programs provided in connection with a 

group health plan. Participatory wellness programs are generally available 

without regard to an individual’s health status. Either no reward is offered, 

or none of the conditions for obtaining a reward are based on an individual 

satisfying a standard related to a health factor. These programs comply with the 

nondiscrimination requirements so long as the program is made available to all 

similarly situated individuals. For example:

A program that reimburses employees for all or part of the cost for 

memberships in a fitness center.

A diagnostic testing program that provides a reward for participation and 

does not base any part of the reward on outcomes.

A program that reimburses employees for the costs of participating, or 

that otherwise provides a reward for participating, in a smoking cessation 

program without regard to whether the employee quits smoking.

A program that provides a reward to employees for attending a monthly, 

no-cost health education seminar.

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28

Health-contingent wellness programs require participants to satisfy a standard 

related to a health factor in order to obtain a reward. There are two types of 

health-contingent wellness programs: activity-only and outcome-based. Activityonly programs require an individual to perform or complete an activity related 

to a health factor in order to obtain a reward. Examples include a walking, diet 

or exercise program. Outcome-based programs require an individual to attain 

or maintain a specific health outcome (such as not smoking or attaining certain 

results on biometric screenings) in order to obtain a reward. To comply with the 

nondiscrimination rules, health-contingent wellness programs must meet five 

requirements described in the final rules.

What are the five requirements for health-contingent wellness 

programs under the final regulations?

1) The program must give individuals eligible to participate the opportunity 

to qualify for the reward at least once per year.

2) The total reward for all the plan’s wellness programs that require 

satisfaction of a standard related to a health factor is limited – generally, 

it must not exceed 30 percent (or 50 percent for programs designed to 

prevent or reduce tobacco use) of the cost of employee-only coverage 

under the plan. If dependents (such as spouses and/or dependent 

children) may participate in the wellness program, the reward must not 

exceed 30 percent (or 50 percent) of the cost of the coverage in which an 

employee and any dependents are enrolled.

3) The program must be reasonably designed to promote health and prevent 

disease. (Note: different requirements apply for activity-only and 

outcome-based programs, as described later in this section.)

4) The full reward must be available to all similarly situated individuals. 

This means the program must allow a reasonable alternative standard 

(or waiver of the otherwise applicable standard). (Note: different 

requirements apply for activity-only and outcome-based programs, as 

described later in this section.)

5) The plan must disclose in all materials describing the terms of the 

program the availability of a reasonable alternative standard (or the 

possibility of a waiver of the otherwise applicable standard). (Note: 

different requirements apply for activity-only and outcome-based 

programs, as described later in this section.) Model language is available 

(see page 139).
29

What factors may be considered in determining whether a program is 

reasonably designed to promote health and prevent disease?

An activity-only or outcome-based program is considered reasonably designed 

to promote health or prevent disease, if the program has a reasonable chance 

of improving the health of, or preventing disease in, participating individuals; 

is not overly burdensome; is not a subterfuge for discrimination based on a 

health factor; and is not highly suspect in the method chosen to promote health 

or prevent disease. The determination is based on all the relevant facts and 

circumstances. 

To ensure that an outcome-based wellness program is reasonably designed to 

improve health and does not act as a subterfuge for underwriting or reducing 

benefits based on a health factor, a reasonable alternative standard to qualify for 

the reward must be provided to any individual who does not meet the initial 

standard based on a test or screening that is related to a health factor. 

Under what circumstances must a reasonable alternative standard 

be offered?

For activity-only programs, a reasonable alternative standard (or waiver of the 

otherwise applicable standard) must be offered to any individual for whom 

it is unreasonably difficult due to a medical condition to satisfy the otherwise 

applicable standard, or for whom it is medically inadvisable to attempt to 

satisfy the otherwise applicable standard. Plans can seek physician verification 

with respect to a request for a reasonable alternative standard, if the request is 

reasonable under the circumstances. 

For outcome-based programs, the reasonable alternative standard (or waiver of 

the otherwise applicable standard) must be offered to any individual who does 

not meet the initial standard based on the measurement, test or screening. If 

the reasonable alternative standard is, itself, another outcome-based wellness 

standard, the reasonable alternative cannot be a requirement to meet a different 

level of the same standard without additional time to comply that takes into 

account the individual’s circumstances and an individual must be given the 

opportunity to comply with the recommendations of their personal physician as 

a second reasonable alternative standard (if the physician joins in the request). 

It is not reasonable for plans to seek physician verification that a health factor 

makes it unreasonably difficult for the individual to satisfy, or medically 

inadvisable for the individual to attempt to satisfy a standard under an outcomebased wellness program. 
30

For all health-contingent wellness programs (whether activity-only or 

outcome-based), all of the facts and circumstances are taken into account when 

determining whether a plan has provided a reasonable alternative standard, 

including but not limited to the following:

If the reasonable alternative standard is completion of an educational 

program, the plan or issuer must make the educational program available 

or assist the employee in finding such a program (instead of requiring an 

individual to find such a program unassisted), and may not require an 

individual to pay for the cost of the program.

The time commitment required must be reasonable (for example, 

requiring attendance nightly at a one hour class would be unreasonable).

If the reasonable alternative standard is a diet program, the plan or issuer 

is not required to pay for the cost of food but must pay any membership 

or participation fee.

If an individual’s personal physician states that a program standard 

(including, if applicable, the recommendations of the plan’s medical 

professional) is not medically appropriate for that individual, the plan or 

issuer must provide a reasonable alternative standard that accommodates 

the recommendations of the individual’s personal physician with regard 

to medical appropriateness. Plans and issuers may impose standard 

cost sharing under the plan or coverage for medical items and services 

furnished pursuant to the physician’s recommendations.

What disclosure is required for the availability of a reasonable 

alternative standard?

Plans and issuers must disclose the availability of a reasonable alternative 

standard to qualify for the reward (and, if applicable, the possibility of waiver 

of the otherwise applicable standard) in all plan materials describing the terms 

of a health-contingent wellness program (both activity-only and outcomebased wellness programs). This disclosure must include contact information 

for obtaining the alternative and a statement that recommendations of an 

individual’s personal physician will be accommodated. If plan materials merely 

mention that such a program is available, without describing its terms, this 

disclosure is not required.

In addition, for outcome based-wellness programs, this notice must also be 

included in any disclosure that an individual did not satisfy an initial outcomebased standard, for example a notice that an individual did not meet the BMI 

target range to qualify for the reward.

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31

How do the wellness program rules apply to a group health plan that 

offers a reward to individuals who participate in voluntary testing for 

early detection of health problems? The plan does not use the test 

results to determine whether an individual receives a reward or the 

amount of an individual’s reward.

Such a program is considered a participatory wellness program since it does 

not base any reward on the outcome of the testing. Thus, it is allowed under the 

HIPAA nondiscrimination provisions as long as the program is made available to 

all similarly situated individuals, without being subject to the five requirements 

that apply to health-contingent wellness programs.

Can a plan provide a premium differential between smokers and 

nonsmokers?

The plan is offering a reward based on an individual’s ability to stop smoking. 

This is considered an outcome-based wellness program. For the plan to 

implement this type of program, the plan’s nonsmoking program would need to 

meet the five requirements for wellness programs that require satisfaction of a 

standard related to a health factor.

Accordingly, this wellness program is permitted if:

The premium differential is not more than 50 percent of the total cost 

of employee-only coverage (or 50 percent of the cost of coverage if 

dependents can participate in the program);

The program is reasonably designed to promote health and prevent 

disease;

Individuals eligible for the program are given an opportunity to qualify 

for the discount at least once per year;

The program provides a reasonable alternative standard, without 

physician verification that the individual met the standard, to all 

individuals who do not meet the otherwise applicable standard (those 

who use tobacco products). For example, the reasonable alternative 

standard could include discounts in return for attending educational 

classes or for trying a nicotine patch; and

Plan materials describing the terms of the premium differential (and 

any disclosure that an individual did not satisfy the wellness program 

standard) describe the availability of a reasonable alternative standard to 

qualify for the lower premium.

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Title I of the Genetic Information Nondiscrimination Act of 2008 (GINA) includes 

provisions that generally prohibit group health plans and health insurance issuers from 

discriminating based on genetic information. These provisions amend the Employee 

Retirement Income Security Act (ERISA), administered by the Department of Labor 

(DOL); the Public Health Service Act (PHSA Act), administered by the Department 

of Health and Human Services (HHS); and the Internal Revenue Code (the Code), 

administered by the Department of the Treasury (the Treasury) and the Internal Revenue 

Service (IRS). DOL has jurisdiction with respect to employment-based group health 

plans. HHS, in conjunction with the States, administers these provisions with respect to 

health insurance issuers. The Treasury and IRS administer these provisions with respect 

to employers. Title I of GINA also includes individual insurance market provisions under 

the PHSA and privacy and confidentiality provisions under the Social Security Act, 

which are both within the jurisdiction of HHS. Title II of GINA, under the jurisdiction 

of the Equal Employment Opportunity Commission, addresses discrimination in 

employment based on genetic information.

The subject of these Frequently Asked Questions is the requirements of Title I of 

GINA under ERISA, prohibiting discrimination in group health plan coverage based on 

genetic information.

GINA expands the genetic information nondiscrimination protections included 

in Title I of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 

Under GINA, group health plans cannot base premiums for a plan or a group of similarly 

situated individuals on genetic information. GINA generally prohibits plans from 

requesting or requiring an individual to undergo genetic tests, and prohibits a plan from 

collecting genetic information (including family medical history) prior to or in connection 

with enrollment, or for underwriting purposes.

GINA applies generally to group health plans. Unlike the provisions under Title I of 

HIPAA, there is no exception for very small health plans with less than two participants 

who are current employees.

The Genetic Information

Nondiscrimination Act

33
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How does GINA expand the genetic information nondiscrimination 

protections in HIPAA?

Before the Affordable Care Act, HIPAA prevented a plan or issuer from imposing 

a preexisting condition exclusion based solely on genetic information. Under the 

Affordable Care Act, plans are prohibited from excluding coverage or benefits 

due to any preexisting condition. HIPAA continues to prohibit discrimination in 

individual eligibility, benefits, or premiums based on any health factor (including 

genetic information). GINA provides additional underwriting protections, 

prohibits requesting or requiring genetic testing, and restricts the collection of 

genetic information. Specifically:

GINA provides that group health plans cannot adjust premiums or 

contribution amounts for a plan, or any group of similarly situated 

individuals under the plan, based on genetic information of one or more 

individuals in the group. (However, premiums may be increased for 

the group based upon the manifestation of a disease or disorder of an 

individual enrolled in the plan.)

GINA generally prohibits plans from requesting or requiring an 

individual to undergo a genetic test. However, a health care professional 

providing health care services to an individual is permitted to request a 

genetic test. A plan or issuer may request the results of a genetic test to 

determine payment of a claim for benefits, but only the minimum amount 

of information necessary in order to determine payment. There is also a 

research exception that permits a plan or issuer under certain conditions 

to request (but not require) that a participant or beneficiary undergo a 

genetic test.

GINA prohibits plans from collecting genetic information (including 

family medical history) from an individual prior to or in connection with 

their enrollment in the plan, or at any time for underwriting purposes. 

Under GINA, underwriting purposes includes rules for determination of 

eligibility for benefits and the computation of premium and contribution 

amounts. Thus, under GINA, plans are generally prohibited from 

offering rewards in return for the provision of genetic information, 

including family medical history information collected as part of a Health 

Risk Assessment (HRA). GINA includes an exception for incidental 

collection of genetic information, provided the information is not used 

for underwriting purposes. However, the regulations make clear that the 

incidental collection exception is not available if it is reasonable for the 

plan or issuer to anticipate that health information will be received in 

response to a collection, unless the collection explicitly states that genetic 

information should not be provided.

34
What is genetic information?

Genetic information means information about an individual’s genetic tests, the 

genetic tests of family members of the individual, the manifestation of a disease 

or disorder in family members of the individual or any request for or receipt 

of genetic services, or participation in clinical research that includes genetic 

services by the individual or a family member of the individual. The term genetic 

information includes, with respect to a pregnant woman (or a family member of 

a pregnant woman) genetic information about the fetus and with respect to an 

individual using assisted reproductive technology, genetic information about the 

embryo.

Genetic information does not include information about the sex or age of any 

individual.

Genetic information includes information about an individual’s 

genetic services and tests. What do these include?

Genetic services mean genetic tests, genetic counseling, or genetic education. 

Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, 

or metabolites, if the analysis detects genotypes, mutations, or chromosomal 

changes. A genetic test does not include an analysis of proteins or metabolites 

directly related to a manifested disease, disorder, or pathological condition.

Therefore, some examples of genetic tests are tests to determine whether an 

individual has a BRCA1, BRCA2, or colorectal cancer genetic variant. In contrast, 

an HIV test, complete blood count, cholesterol test, liver function test, or test for 

the presence of alcohol or drugs is not a genetic test.

Genetic information includes an individual’s genetic tests and 

information about the manifestation of a disease or disorder in 

an individual’s family member. A genetic test does not include 

an analysis of proteins or metabolites that is directly related to a 

manifested disease, disorder, or pathological condition. What is a 

manifested disease?

A manifested disease is a disease, disorder, or pathological condition for which 

an individual has been or could reasonably be diagnosed by a health care

professional (with appropriate training and expertise in the field of medicine 

involved).

A disease is not manifested if a diagnosis is based principally on genetic 

information. For example, an individual whose genetic tests indicate a genetic 

variant associated with colorectal cancer and another that indicates an increased 

35
risk of developing cancer, but who has no signs or symptoms of disease and

has not and could not reasonably be diagnosed with a disease does not have a 

manifested disease.

While plans are prohibited from adjusting group premiums or contributions 

based on genetic information, plans can increase the premium or contribution 

based on the manifested disease or disorder of an individual enrolled in the plan. 

This is because information about an individual’s manifested disease or disorder 

is not genetic information with respect to that individual. This is discussed 

further below.

GINA prohibits a plan from collecting genetic information (including 

family medical history) prior to or in connection with enrollment, or 

at any time for underwriting purposes. What does “collect” include?

Collect means to request, require, or purchase genetic information.

Can a group health plan adjust the premium that an employer or 

group of similarly situated individuals must pay under the plan based 

on genetic information of an individual or individuals covered under 

the group?

No. GINA prohibits a group health plan from adjusting group premium or 

contribution amounts for a group of similarly situated individuals based on the 

genetic information of members of the group. This is a change from HIPAA’s 

prior nondiscrimination requirements, which allowed plans to adjust premiums 

or contributions for the group health plan or group of similarly situated 

individuals (but not for specific individuals within the group) based on genetic 

information, as well as other health factors. Therefore, even if a plan obtained 

individual genetic information about group members before GINA’s effective 

date, it cannot be used to adjust the group premium.

Under GINA and HIPAA, a plan can charge a higher overall, blended perparticipant amount based on the manifestation of a disease or a disorder of an 

individual enrolled in the plan. However, a plan cannot use the manifestation of 

a disease or disorder in one individual as genetic information about other group 

members to further increase the group premium.

A plan can take into account the costs associated with providing benefits for 

covered genetic tests or genetic services in determining overall premium or 

contribution amounts. Note, under HIPAA, a plan cannot charge an individual 

more for coverage than other similarly situated individuals in the group based 

on any health factor, including a manifested disease or disorder.

For further discussion of what “manifested disease” means, see above.

36
Can an individual’s doctor or other health care provider request that 

the individual undergo a genetic test?

Generally, yes. GINA prohibits a group health plan from requesting or requiring 

an individual or a family member of an individual to undergo genetic tests.

Nonetheless, under GINA, a health care professional who is providing health 

care services to an individual can request that an individual undergo a genetic 

test. A health care professional includes but is not limited to a physician, nurse, 

physician’s assistant, or technicians that provide health care services to patients.

For example, if during the course of a routine physical exam, a physician 

learns that an individual has family medical history indicating a potential risk 

for Huntington’s disease, the physician can recommend that the individual 

undergo a related genetic test. This would not violate GINA. This would be 

true even if the doctor were employed by an HMO, so long as the physician was 

providing health care services to the individual for whom the genetic test was 

recommended.

Can a health plan obtain the results of a genetic test to make a 

determination regarding payment of a claim for benefits under the 

plan?

Generally, yes. If a plan conditions payment for an item or service based on 

medical appropriateness and the medical appropriateness depends on the 

genetic makeup of the patient, then the plan is permitted to condition payment 

for the item or service on the outcome of a genetic test. The plan may also refuse 

payment in that situation if the patient does not undergo the genetic test. The 

plan may request only the minimum amount of information necessary to make a 

determination regarding payment.

If a plan normally covers mammograms for participants and 

beneficiaries starting at age 40, but covers them at age 30 for 

individuals with a high risk of breast cancer, may the plan require 

that an individual under 40 submit genetic test results or family 

medical history as evidence of high risk of breast cancer, in order to 

have a claim for a mammogram paid?

Generally, yes. Under GINA, a plan may request and use the results of a genetic 

test to make a determination regarding payment, as long as the plan requests 

only the minimum amount of information necessary.

Plans may also request genetic information for the purpose of determining the 

medical appropriateness of a treatment or service. Because the medical

appropriateness of the mammogram depends on the patient’s genetic makeup, 

the minimum amount of information necessary for determining payment of the 

claim may include the results of a genetic test or the individual’s family medical 

history.

37
Can a plan request that a participant or beneficiary undergo a genetic 

test for research purposes?

Under GINA, a plan is permitted to request, but not to require, that a participant 

or beneficiary undergo a genetic test for research purposes if the following four 

requirements are met:

The plan makes the request pursuant to research. (Research is defined 

in 45 CFR 46.102(d).) The research must comply with 45 CFR Part 46 or 

equivalent Federal regulations and any applicable State or local law or 

regulation for the protection of human subjects in research.

The plan must make the request for the genetic test in writing and clearly 

indicate to each participant and beneficiary that the request is voluntary

and will have no effect on eligibility.

No genetic information collected pursuant to this research exception can 

be used for underwriting purposes.

The plan must complete a copy of the “Notice of Research Exception 

under the Genetic Information Nondiscrimination Act” and provide the 

notice to the address specified in the instructions. You can access this 

notice at dol.gov/ebsa/GINAexceptioninstructions.html.

GINA prohibits a group health plan from collecting genetic 

information for underwriting purposes. What does underwriting 

purposes mean?

Under GINA, the definition of underwriting purposes is broader than 

merely activities relating to rating and pricing a group policy. Under GINA, 

underwriting purposes means, with respect to a group health plan:

Rules for or determination of eligibility (including enrollment and 

continued eligibility) for benefits under the plan or coverage (including 

changes in deductibles or other cost-sharing mechanisms in return

for activities such as completing a health risk assessment (HRA) or 

participating in a wellness program);

Computation of premium or contribution amounts under the plan 

(including discounts, rebates, payments in kind, or other premium 

differential mechanisms in return for activities such as completing an 

HRA or participating in a wellness program);

The application of any preexisting condition exclusion under the plan; 

and

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38

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Other activities related to the creation, renewal, or replacement of a 

contract of health insurance or health benefits.

Can a plan require an individual to complete a health risk assessment 

(HRA) prior to or as part of the enrollment process for the plan?

GINA prohibits a plan from collecting genetic information (including family 

medical history) prior to or in connection with enrollment. Thus, under GINA, 

plans must ensure that any HRA conducted prior to or in connection with 

enrollment does not collect genetic information, including family medical history.

Under GINA, there is an exception for genetic information that is obtained 

incidental to the collection of other information, if 1) the genetic information that 

is obtained is not used for underwriting purposes and 2) if it is reasonable to 

anticipate that the collection will result in the plan receiving health information, 

the plan explicitly notifies the person providing the information that genetic 

information should not be provided.

Therefore, a plan conducting an HRA prior to or in connection with enrollment, 

should ensure that the HRA explicitly states that genetic information should not 

be provided.

Can a plan require that an individual complete a health risk 

assessment (HRA) that requests family medical history in order to 

receive a wellness program reward, such as a financial incentive, in 

return for the completion of the HRA?

GINA prohibits a plan from collecting genetic information (including family 

medical history):

prior to or in connection with enrollment; or

at any time for underwriting purposes.

Because completing the HRA results in a reward, the request is for underwriting 

purposes and is prohibited.

A plan may use an HRA that requests family medical history, if it is requested 

to be completed after and unrelated to enrollment and if there is no premium 

reduction or any other reward for completing the HRA.

A plan may offer a premium discount or other reward for completion of an HRA 

that does not request family medical history or other genetic information, such as 

information about any genetic tests the individual has undergone.

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39
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The plan should ensure that the HRA explicitly states that genetic information 

should not be provided. This is because GINA provides an exception for genetic 

information that is obtained incidental to the collection of other information, if 

1) the genetic information that is obtained is not used for underwriting purposes 

and 2) if in connection with any collection it is reasonable to anticipate that 

health information will be received, the collection explicitly states that genetic 

information should not be provided.

Plans may use two separate HRAs; one that collects genetic information, such 

as family medical history, which is conducted after and unrelated to enrollment 

and is not tied to a reward, and another HRA that does not request genetic 

information, which can be tied to a reward. In addition, under GINA group 

health plans may also reward:

Participation in an annual physical examination with a physician (or 

other health care professional) who is providing health care services to 

the individual, even if the physician may ask for family medical history as 

part of the examination;

More favorable cost-sharing for preventive services, including genetic 

screening; and

Participation in certain disease management or prevention programs. 

The incentives to participate in such programs must also be available to 

individuals who qualify for the program but have not volunteered family 

medical history information through an HRA.

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40
Mental Health Parity 

Provisions

The Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) was 

signed into law on October 3, 2008 and became effective for plan years beginning after 

October 3, 2009. MHPAEA greatly expands on an earlier law, the Mental Health 

Parity Act of 1996 (MHPA). On November 8, 2013, the Departments of Health and 

Human Services, Labor and the Treasury jointly issued final regulations implementing 

MHPAEA, which became applicable for plan years beginning on or after July 1, 2014.

MHPAEA generally applies to group health plans and health insurance issuers that 

provide coverage for either mental health or substance use disorder benefits and medical/

surgical benefits. These FAQs provide basic information about the important protections 

MHPAEA provides with respect to parity in coverage of mental health and substance 

use disorder benefits and medical/surgical benefits provided by employment-based group 

health plans.

Reviewing your group health plan for compliance with the mental health parity 

requirements may be complicated depending on your plan’s design. If you have questions 

about MHPAEA or the mental health or substance use disorder benefits under your plan, 

contact the Department of Labor at askebsa.dol.gov or 1-866-444-3272.

What additional protections does MHPAEA provide for participants 

and beneficiaries?

MHPA required parity with respect to aggregate lifetime and annual dollar 

limits for mental health benefits and medical/surgical benefits. MHPAEA 

expands those provisions to include substance use disorder benefits. Thus, under 

MHPAEA group health plans generally may not impose a lifetime or annual 

dollar limit on mental health or substance use disorder benefits that is lower than 

the lifetime or annual dollar limit imposed on medical/surgical benefits. 3

MHPAEA also requires group health plans to ensure that financial requirements 

(such as copays and deductibles), and quantitative treatment limitations (such 

as visit limits), applicable to mental health or substance use disorder benefits 

are generally no more restrictive than the requirements or limitations applied to 

3

However, note that the Affordable Care Act prohibits lifetime and annual limits on the dollar 

amount of essential health benefits. The definition of essential health benefits includes ``mental 

health and substance use disorder services, including behavioral health treatment.’’

41
medical/surgical benefits. The MHPAEA regulations also require plans to ensure 

parity with respect to nonquantitative treatment limitations (such as medical 

management standards).

Can group health plans still apply financial requirements and 

treatment limitations, such as copays or visit limits on mental health 

and substance use disorder benefits?

Generally, yes. Group health plans may still apply financial requirements and 

treatment limitations with respect to mental health and substance use disorder 

benefits; however, they must do so in accordance with the requirements under 

MHPAEA.

There is a test for determining whether a financial requirement or treatment 

limitation for mental health or substance use disorder benefits is permissible. 

The general rule is that a plan may not impose a financial requirement or 

quantitative treatment limitation applicable to mental health or substance 

use disorder benefits in any classification that is more restrictive than the 

predominant financial requirement or quantitative limitation of that type applied 

to substantially all medical/surgical benefits in the same classification. How to 

apply this test is discussed in more detail in the following FAQs. 

What is a financial requirement or quantitative treatment limitation?

The most common types of financial requirements include deductibles, copays, 

coinsurance, and out-of-pocket maximums. Types of quantitative treatment 

limitations include annual, episode, and lifetime day and visit limits, for 

example, number of treatments, visits, or days of coverage. These are just 

examples; therefore, you could find a type of financial requirement and 

quantitative treatment limitations that is not specifically listed here.

The test for determining parity refers to levels of types of financial 

requirements or treatment limitations. What is a level of a type of 

financial requirement or treatment limitation?

The level of a type of financial requirement or treatment limitation refers to 

the magnitude of the type of financial requirement or treatment limitation. 

For example, different levels of coinsurance include 20 percent and 30 percent, 

different levels of copays include $15 and $20, or different levels of an episode 

limit include 21 inpatient days per episode and 30 inpatient days per episode.

42
How can I determine if a financial requirement or quantitative 

treatment limitation applicable to mental health and substance use 

disorder benefits is permissible?

To determine if a quantitative financial requirement (such as a copay) or 

quantitative treatment limitation (such as a visit limit) is permissible, the parity 

analysis must be applied for that type of financial requirement or treatment 

limitation within a coverage unit for each of the six classifications of benefits 

separately. A coverage unit refers to the way in which a plan groups individuals 

for purposes of determining benefits, premiums or contributions (for example, 

self-only, family, employee plus spouse). Under MHPAEA, the six classifications 

of benefits 4 are:

1) Inpatient in-network;

2) Inpatient out-of-network;

3) Outpatient in-network;

4) Outpatient out-of-network;

5) Emergency care;

6) Prescription drugs.

If a type of financial requirement or quantitative treatment limitation applies 

to substantially all medical/surgical benefits in a classification (for example, if 

a copay applies to substantially all medical/surgical benefits), then it may be 

permissible for that requirement or limitation (the copay) to apply to mental 

health or substance use disorder benefits in the same classification. In some 

circumstances plans can subdivide certain classifications to account for multiple 

network tiers, among other things. This is discussed later in this section.

Generally, a financial requirement or treatment limitation is considered to apply 

to substantially all medical/surgical benefits if it applies to two-thirds or more of 

the medical/surgical benefits for the same classification and coverage unit. This 

two-thirds calculation is based on the dollar amount of all plan payments for 

medical/surgical benefits expected to be paid for the year (or portion of the plan 

year after a change in plan benefits that affects the applicability of the financial 

requirement or quantitative treatment limitation).

The predominant level of a type of requirement or limitation applicable to 

medical/surgical benefits within a classification is the most restrictive level of 

the requirement or limitation that can be imposed on mental health or substance 

use disorder benefits within that classification. There is a detailed test for 

determining the predominant level which is discussed in the next FAQ. If, for 

 4For more information regarding the outpatient in-network and outpatient out-of-network 

classifications, see the FAQ at: dol.gov/ebsa/faqs/faq-mhpaea.html.

43
example, for self-only coverage a $10 copay is the predominant level of copay 

that applies to substantially all inpatient in-network medical/surgical benefits, 

that is the most restrictive copay level that can apply to inpatient in-network 

mental health or substance use disorder benefits. With respect to the prescription 

drug classification, there is a special rule for multi-tiered prescription drug 

benefits. 5

If as determined under MHPAEA, it is permissible for my plan 

to impose a copay on my inpatient, in-network mental health or 

substance use disorder benefits, is there any restriction on the 

amount of copay that can apply?

Yes. The predominant level of a type of requirement or limitation applicable to 

medical/surgical benefits within a classification is the most restrictive level of the 

requirement or limitation that can be imposed on mental health or substance use 

disorder benefits within that classification.

Generally, the predominant level will apply to more than one-half of the medical/ 

surgical benefits in that classification subject to the requirement or limitation. 

If there is no single level that applies to more than one-half of medical/surgical 

benefits in the classification, the plan can combine levels until the combination 

of levels applies to more than one-half of medical/surgical benefits subject to 

the requirement or limitation in the classification. 6 The least restrictive level 

within the combination is considered the predominant level. The determination 

of the portion of medical/surgical benefits in a classification subject to a financial 

requirement or treatment limitation is based on the dollar amount of all plan 

payments for medical/surgical benefits in the classification expected to be paid 

under the plan for the plan year.

Can I use sub-classifications within the six classifications?

The final regulations allow for a plan to create two sub-classifications for 

purposes of applying the financial requirement and treatment limitation rule 

under MHPAEA:

 Plans can sub-divide the outpatient classification into office visits and all 

other outpatient services. 

Plans can sub-divide in-network classifications for plans with multiple 

network tiers if the tiering is based on reasonable factors and without 

regard to whether a provider is a mental health or substance use disorder 

provider or a medical/surgical provider.

 5See 29 CFR 2590.712(c)(3)(iii).

 6For this purpose the plan may combine the most restrictive levels first, with each less restrictive 

level added to the combination until the combination applies to more than one-half of the benefits 

subject to the financial requirement or treatment limitation.

44




After the sub-classifications are established, the plan or issuer may not impose 

any financial requirement or treatment limitation on mental health or substance 

use disorder benefits in any sub-classification (i.e., office visits or non-office 

visits) that is more restrictive than the predominant financial requirement or 

treatment limitation that applies to substantially all medical/surgical benefits in 

the sub-classification. 

Plans cannot use any other type of sub-classifications, such as those based on the 

classification of generalists or specialists. 

Can my plan impose different levels of copays on different tiers of 

prescription drug benefits?

In addition to the permitted sub-classifications discussed above, the regulations 

provide a special rule for multi-tiered prescription drug benefits. A plan can 

apply different levels of financial requirements to different tiers of prescription 

drug benefits if two conditions are met. First, the tiering must be based 

on reasonable factors determined in accordance with the rules relating to 

requirements for nonquantitative treatment limitations. Reasonable factors 

include cost, efficacy, generic versus brand name, and mail order versus 

pharmacy pick-up. Second, the tiering and financial requirements must be made 

without regard to whether a drug is prescribed for a medical/surgical condition 

or a mental health or substance use disorder condition.

Can my plan impose a higher “specialist” financial requirement with 

respect to mental health and substance use disorder benefits?

As stated above, a plan may not create sub-classifications for generalists and 

specialists to determine separate predominant financial requirements and 

treatment limitations that apply to substantially all medical/surgical benefits. 

However, if the predominant level of a type of financial requirement that 

applies to substantially all medical/surgical benefits in a classification is the one 

charged for a medical/surgical specialist, then that level of that type of financial 

requirement can be applied for mental health or substance use disorder benefits 

within that classification. On the other hand, if the predominant level of a type of 

financial requirement that applies to substantially all medical/surgical benefits in 

a classification is the one charged for a medical/surgical generalist, then the level 

of that financial requirement charged for mental health or substance use disorder 

benefits within that classification cannot be higher than the level of that financial 

requirement for “generalist” medical/surgical benefits.

45
If a plan previously had separate deductibles for medical/surgical 

benefits and mental health or substance use disorder benefits, how 

should those deductibles be combined now?

While plans can no longer have separate deductibles for mental health 

or substance use disorder benefits and for medical/surgical benefits in a 

classification, they do have flexibility in how they choose to combine these 

deductibles. For example, if a plan previously had a $500 deductible on medical/

surgical benefits, and a $500 deductible on mental health or substance use 

disorder benefits, the plan could now choose to have a combined $750 deductible 

for all benefits. As long as there is no separate deductible that applies only to 

mental health or substance use disorder benefits, generally the plan can set the 

combined deductible at whatever amount it chooses.

What are nonquantitative treatment limitations?

Nonquantitative treatment limitations include: 

Medical management standards limiting or excluding benefits based on 

medical necessity or medical appropriateness, or based on whether the 

treatment is experimental or investigative; 

Formulary design for prescription drugs; 

For plans with multiple network tiers (such as preferred providers and 

participating providers), network tier design; 

Standards for provider admission to participate in a network, including 

reimbursement rates; 

Plan methods for determining usual, customary, and reasonable charges; 

Refusal to pay for higher-cost therapies until it can be shown that a 

lower-cost therapy is not effective (also known as fail-first policies or step 

therapy protocols); 

Exclusions based on failure to complete a course of treatment; and 

Restrictions based on geographic location, facility type, provider 

specialty, and other criteria that limit the scope or duration of benefits for 

services provided under the plan or coverage. 

This is an illustrative, non-exhaustive list.

46
















How does MHPAEA provide for parity with respect to nonquantitative 

treatment limitations?

Under MHPAEA, a plan may not impose a nonquantitative treatment limitation 

with respect to mental health or substance use disorder benefits in any 

classification (such as inpatient, out-of-network) unless under the terms of the 

plan as written and in operation, any processes, strategies, evidentiary standards, 

or other factors used in applying the limitation to mental health or substance 

use disorder benefits in the classification are comparable to and applied no more 

stringently than the processes, strategies, evidentiary standards or other factors 

used in applying the limitation with respect to medical/surgical benefits in the 

classification.

What information must be provided to participants and beneficiaries 

when a request for mental health benefits is denied?

Under MHPAEA, the criteria for medical necessity determinations made under 

a group health plan (or health insurance coverage offered in connection with 

the plan) with respect to mental health or substance use disorder benefits must 

be made available by the plan administrator or the health insurance issuer 

to any current or potential participant, beneficiary, or contracting provider 

upon request. In addition, under the internal appeals and external review 

requirements added by the Affordable Care Act, non-grandfathered group 

health plans must provide to an individual (or a provider or other individual 

acting as a patient’s authorized representative), upon request and free of charge, 

reasonable access to and copies of all documents, records, and other information 

relevant to the individual’s claim for benefits consistent with the Department 

of Labor claims procedure regulation. 7 Documents with information on the 

medical necessity criteria for both medical/surgical benefits and mental health 

or substance use disorder benefits are plan documents, and copies must be 

furnished within 30 days of your request under ERISA. 8 

Are there plans that are exempt from MHPAEA?

Yes. MHPAEA applies to most employment-based group health coverage, but 

there are a few exceptions. MHPAEA contains an exemption for a group health 

plan of a small employer. However, under HHS final rules, non-grandfathered 

 7See dol.gov/ebsa/healthreform for consumer information on internal claims and appeals, external 

review of health plan decisions, and grandfathered health plans under the Patient Protection and 

Affordable Care Act.  8See 29 CFR 2520.104b-1

47
health insurance coverage in the individual and small group markets generally 

must provide all categories of essential health benefits, including mental health 

and substance use disorder benefits, and such benefits must be provided in 

compliance with the requirements of the MHPAEA rules. 9 

MHPAEA also contains an increased cost exemption available to plans that meet 

the requirements for the exemption. The final rules establish standards and 

procedures for claiming the exemption under MHPAEA. 10 Additionally, plans 

for State and local government employees that are self-insured may opt-out 

of MHPAEA’s requirements if certain administrative steps are taken (such as 

sending notice to enrollees). 11 Finally, MHPAEA does not apply to retiree-only 

plans. 12

Where can I find more information about the protections available 

under MHPAEA?

Additional information and FAQs regarding MHPAEA are available on the 

Department of Labor’s Mental Health Parity Web page at dol.gov/ebsa/

mentalhealthparity. 

 978 FR 12834

 10For more information on MHPAEA’s increased cost exemption, see Q7 of the FAQs available at 

dol.gov/ebsa/faqs/faq-aca17.html.  11 If you are an employee of a State or local government that sponsors a self-insured plan and 

would like to know if your employment-based plan has opted out, see the list of HIPAA opt-out 

elections for self-funded, non-federal governmental plans, available at cms.gov/cciio/Resources/

Forms-Reports-and-Other-Resources/index.html#Self-Funded Non-Federal Governmental Plans.  12See preamble to the final rules implementing MHPAEA published on November 13, 2013.

48
The Newborns’ and Mothers’ Health Protection Act (the Newborns’ Act) provides 

protections for mothers and their newborn children relating to the length of their hospital 

stays following childbirth.

Group health plans that are subject to the Newborns’ Act may not restrict benefits 

for a hospital stay in connection with childbirth to less than 48 hours following a vaginal 

delivery or 96 hours following a delivery by cesarean section. However, the attending 

provider may decide, after consulting with the mother, to discharge the mother and/or her 

newborn child earlier.

Many states have enacted their own version of the Newborns’ Act for insured 

coverage. In these states, State law can govern in lieu of the Federal requirements.

What group health plans must comply with the Newborns’ Act?

If a plan offers benefits for hospital stays in connection with childbirth, the 

Newborns’ Act applies if the coverage is “self-insured” by an employment-based 

plan.

If the coverage is provided by an insurance company or HMO (an “insured” 

plan), and your State has a law regulating coverage for newborns and mothers 

that meets specific criteria, then State law, rather than the Newborns’ Act, 

applies. If this is the case, the State law may differ slightly from the Newborns’ 

Act requirements, so it is important to know which law applies to the coverage 

offered by your plan.

For those plans with coverage that is insured by an insurance company or HMO, 

contact your State insurance department for the most current information on the 

State laws that pertain to hospital length of stay in connection with childbirth.

For those plans covered by the Federal law, the following questions apply:

When does the 48-hour (or 96-hour) period start?

If a woman delivers her baby in the hospital, the 48-hour period (or 96-hour 

period) starts at the time of delivery. As an example: if a woman goes into labor 

and is admitted to the hospital at 10 p.m. on June 11, but gives birth by vaginal 

delivery at 6 a.m. on June 12, the 48-hour period begins at 6 a.m. on June 12.

However, if the woman delivers outside the hospital and is later admitted to 

the hospital in connection with childbirth (as determined by the attending 

The Newborns’ and Mothers’ 

Health Protection Act

49
50

provider), the period begins at the time of the hospital admission. For example, if a 

woman gives birth at home by vaginal delivery, but begins bleeding excessively in 

connection with childbirth and is admitted to the hospital, the 48-hour period starts 

at the time of admission.

Who is the attending provider?

An attending provider is an individual licensed under State law who is directly 

responsible for providing maternity or pediatric care to a mother or newborn child. 

A nurse midwife or a physician assistant may be an attending provider if licensed 

in the State to provide maternity or pediatric care in connection with childbirth. 

A health plan, hospital, insurance company, or HMO, however, would not be an 

attending provider.

The attending provider cannot receive incentives or disincentives to discharge the 

mother or her child earlier than 48 hours (or 96 hours).

May a group health plan require an individual to get permission 

(sometimes called prior authorization or precertification based upon 

medical necessity) for a 48-hour or 96-hour hospital stay?

A plan cannot deny a mother or her newborn child coverage for a 48-hour stay (or 

96-hour stay) because the plan claims that the mother or her attending provider has 

failed to show that the 48-hour stay (or 96-hour stay) is medically necessary.

However, plans generally can require an individual to notify the plan of the 

pregnancy in advance of an admission in order to use certain providers or facilities 

or to reduce the individual’s out-of-pocket costs.

Under the Newborns’ Act, may group health plans impose deductibles 

or other cost-sharing provisions for hospital stays in connection with 

childbirth?

Yes, but only if the deductible, coinsurance, or other cost-sharing for the latter part of 

a 48-hour (or 96-hour) stay is not greater than that imposed for the earlier part of the 

stay. For example, with respect to a 48-hour stay, a group health plan is permitted 

to cover only 80 percent of the cost of the hospital stay. However, a plan covering 80 

percent of the cost of the first 24 hours could not reduce coverage to 50 percent for 

the second 24 hours.
51

Does the Newborns’ Act require a plan to offer maternity benefits?

No. The Newborns’ Act does not require plans to provide coverage for hospital 

stays in connection with childbirth. However, other legal requirements, including 

Title VII of the Civil Rights Act of 1964, may require this type of coverage. 

Questions regarding Title VII should be directed to the Equal Employment 

Opportunity Commission. See the agency’s Website at eeoc.gov.

Are group health plans required to tell participants and beneficiaries 

about the Newborns’ Act and any applicable State law protections?

A group health plan that provides maternity or newborn infant coverage must 

include in its SPD a statement describing the Federal or State law requirements 

applicable to the plan (or any health insurance coverage offered under the plan) 

relating to hospital length of stay in connection with childbirth for the mother or 

newborn child. If the Federal Newborns’ Act law applies in some areas in which 

the plan operates and State laws apply in others, the SPD must describe the 

Federal and State law requirements that apply in each area covered by the plan.

Model language to describe the Federal law requirements is included on page 

140.

The Women’s Health and Cancer Rights Act (WHCRA) provides protections for 

individuals who elect breast reconstruction after a mastectomy. Under WHCRA, group 

health plans offering mastectomy coverage must also provide coverage for certain services 

relating to the mastectomy, in a manner determined in consultation with the attending 

physician and the patient. Required coverage includes all stages of reconstruction of 

the breast on which the mastectomy was performed, surgery and reconstruction of the 

other breast to produce a symmetrical appearance, prostheses, and treatment of physical 

complications of the mastectomy, including lymphedema.

Written notice about the availability of these mastectomy-related benefits must 

be delivered to participants in a group health plan upon enrollment and then each year 

afterwards.

Does WHCRA apply to individuals who have not been diagnosed with 

cancer but who must undergo a mastectomy due to other medical 

reasons?

Despite the title, nothing in the law limits entitlement to WHCRA benefits 

to cancer patients. If an individual is receiving benefits in connection with a 

mastectomy and the group health plan covers mastectomies, then the individual is 

entitled to WHCRA benefits.

Also, despite the title, nothing in the law limits WHCRA entitlements to women.

Does WHCRA mandate minimum hospital lengths of stay in 

connection with mastectomy or breast reconstruction?

No, but many State laws applicable to insured coverage provide more protections 

than WHCRA. Thus, if a plan provides coverage through an insurance company, 

covered individuals may be entitled to minimum hospital stays under State law. 

If your plan is insured, check with your State insurance department for more 

information. 

The Women’s Health 

and Cancer Rights Act

53
54

May group health plans impose deductibles or coinsurance 

requirements on the coverage specified in WHCRA?

Yes, but only if the deductibles and coinsurance are consistent with those 

established for other medical/surgical benefits under the plan or coverage.

Can my plan refuse to cover reconstructive surgery benefits because 

the mastectomy was performed when the participant was covered 

under a different insurance company?

If the plan provides coverage for mastectomies and the participant is receiving 

benefits under the plan that is related to a mastectomy, then the plan generally 

is required to cover reconstructive surgery upon request. In addition, the plan 

generally is required to cover the other benefits specified in WHCRA. It does not 

matter that the participant was not enrolled in the current plan and/or was not 

covered by the same insurance company at the time of the mastectomy. 

There are additional related protections under the Affordable Care Act. For plan 

years beginning on or after January 1, 2014, a group health plan generally cannot 

limit or deny benefits relating to a health condition that was present before 

enrollment in the plan (a preexisting condition). For more information see the 

Affordable Care Act section of this publication at page 9 or visit the Affordable 

Care Act Web page of the Department of Labor’s Employee Benefits Security 

Administration (EBSA) at dol.gov/ebsa/healthreform/ or the Department of 

Health and Human Services’ Website at HealthCare.gov.

Is my plan required to provide preventive services related to the 

detection of breast cancer? 

Under the Affordable Care Act, plans must provide certain preventive services, 

such as breast cancer mammography screenings for women 40 years of age and 

older, with no copayment, coinsurance or deductible (or other cost-sharing). For 

more information, visit HealthCare.gov/what-are-my-preventive-care-benefits/.

WHCRA does not require coverage for preventive services related to the 

detection of breast cancer.

What information should be included in the notice provided when 

participants enroll in the plan?

The enrollment notice must state that, for an individual who is receiving 

mastectomy-related benefits, coverage will be provided in a manner determined 

in consultation with the attending physician and the patient for:








55

All stages of reconstruction of the breast on which the mastectomy was 

performed;

Surgery and reconstruction of the other breast to produce a symmetrical 

appearance;

Prostheses; and

Treatment of physical complications of the mastectomy, including 

lymphedema.

The enrollment notice must also describe any deductibles and coinsurance 

limitations applicable to such coverage. Under WHCRA, coverage of breast 

reconstruction and other benefits specified in WHCRA may be subject only to 

deductibles and coinsurance limits consistent with those established for other 

medical/surgical benefits under the plan or coverage.

A copy of a model enrollment notice is included on page 141.

What information should be included in the annual notice to 

participants in the plan?

The annual notice should describe the four categories of coverage required 

and should contain information on how to obtain a detailed description of 

the mastectomy-related benefits available under the plan. To satisfy this 

annual notice requirement, the plan may provide the same notice it provided 

to individuals upon enrollment in the plan if it contains the appropriate 

information as described above.

A model annual notice is included on page 142.

How must the plan provide these notices to participants?

These notices must be delivered in accordance with the Department of Labor’s 

disclosure rules applicable to furnishing Summary Plan Descriptions. For 

example, the notices may be provided by first class mail or any other means of 

delivery prescribed in the regulation. A separate notice must be furnished to a 

group health plan beneficiary where the last known address of the beneficiary is 

different than the last known address of the covered participant.

To avoid duplication of notices, a group health plan can satisfy the WHCRA 

notice requirements by contracting with another party that provides the required 

notice. For example, in the case of an insured group health plan, the plan will 

satisfy the notice requirements with respect to a particular participant if the 

issuer timely provides the notice including the information required by WHCRA.
Where can I find more information about the requirements under 

WHCRA?

WHCRA is administered by the U.S. Departments of Labor and Health and 

Human Services.

For more information regarding an employer-sponsored group health 

plan’s responsibilities under WHCRA, visit the Website of the Department 

of Labor’s Employee Benefits Security Administration at dol.gov/ebsa/

healthlawschecksheets.html. 

For more information on WHCRA, visit the Website of the Department of Health 

and Human Services’ Centers for Medicare & Medicaid Services at 

cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/whcra_

factsheet.html. 

56
Applying and Enforcing 

Laws in Part 7 of ERISA

Are certain benefits exempt from the requirements in Part 7 of 

ERISA, including HIPAA and the Affordable Care Act?

Part 7 of ERISA (Part 7) does not apply to plans with respect to their provision of 

“excepted benefits.” 

Some benefits, such as accidental death and dismemberment benefits, are always 

excepted benefits and are not subject to the laws in Part 7, including HIPAA and 

the Affordable Care Act. Other benefits, including 1) limited-scope dental and 

limited-scope vision benefits, 2) benefits under certain health flexible spending 

arrangements, 3) noncoordinated benefits, and 4) supplemental benefits may be 

excepted if certain criteria are met.

More specific information on dental-only and vision-only coverage and 

supplemental excepted benefits is provided in this section. For more information 

on other types of excepted benefits, see 29 CFR 2590.732(c) or contact the EBSA 

office nearest you.

Are dental-only and vision-only coverage subject to Part 7?

It depends. These benefits may constitute limited-scope excepted benefits (and, 

therefore, are not subject to Part 7) if:

The benefits are offered under a separate insurance policy, certificate, or 

contract of insurance. (This is an option for insured plans only.)

OR

The benefits are “not an integral part of the plan.” (This is an option 

for both insured and self-insured plans.) Under the final rules issued in 

September 2014, benefits are not an integral part of the plan if participants 

have the right to elect not to receive coverage for the benefits. 





57
Is supplemental health insurance coverage subject to Part 7?

It depends. Three types of coverage may qualify as supplemental excepted 

benefits (and, therefore, are not subject to Part 7): Medicare supplemental 

health insurance, TRICARE supplemental programs, and similar supplemental 

coverage provided to coverage under a group health plan.

Coverage will be treated as “similar supplemental coverage” if it is provided 

under a separate policy, certificate, or contract of insurance, and it satisfies these 

requirements:

The supplemental coverage must be issued by an entity that does not 

provide the plan’s primary coverage;

It must be specifically designed to fill gaps in primary coverage, such as 

coinsurance or deductibles (but does not include coverage that becomes 

secondary or supplemental only under a coordination-of-benefits 

provision);

The cost of supplemental coverage must not exceed 15 percent of the cost 

of primary coverage; and

The supplemental coverage must not differentiate among individuals 

and dependents in eligibility, benefits, or premiums based on any health 

factor.

See Field Assistance Bulletin 2007-04 at dol.gov/ebsa for more information.

Who enforces the requirements of Part 7 of ERISA and parallel 

requirements under the Internal Revenue Code and the Public Health 

Service Act?

The Secretary of Labor enforces the requirements under ERISA for private-sector 

group health plans. In addition, participants and beneficiaries can sue both plans 

and issuers to enforce their rights under ERISA.

The Secretary of the Treasury enforces requirements for private-sector group 

health plans under the Code. A taxpayer that fails to comply may be subject to 

certain excise taxes or penalties.

States also have enforcement responsibility, including sanctions available under 

State law, for requirements imposed on health insurance issuers. If a State does 









58
not act in the areas of its responsibility or does not have authority to enforce, the 

Secretary of Health and Human Services may assert Federal authority to enforce, 

and impose sanctions on insurers as specified in the statute, including civil 

monetary penalties. 

Can States laws apply to employment-based group health plan 

coverage?

State laws related to health insurance issuers generally continue to apply except 

to the extent that such State law “prevents the application of” a requirement 

of Part 7 of ERISA. Therefore, if health coverage is offered through an HMO 

or an insurance policy, check with your State insurance department for more 

information on that State’s insurance laws.

59

Appendix A:

Self-Compliance Tools

61
INTRODUCTION

Self-Compliance Tool for Part 7 of ERISA:

Health Care-Related Provisions

This self-compliance tool is intended to help group 

health plans, plan sponsors, plan administrators, 

health insurance issuers, and other parties determine 

whether a group health plan is in compliance with 

some of the provisions of Part 7 of ERISA.

The requirements described in this Part 7 tool 

generally apply to group health plans and group 

health insurance issuers. However, references in 

this tool generally are limited to “group health 

plans” or “plans” for convenience. In addition, these 

provisions generally do not apply to retiree-only or 

excepted benefits plans (See 29 CFR 2590.732).

This self-compliance tool is not meant to be 

considered legal advice. Rather, it is intended to give 

the user a basic understanding of Part 7 of ERISA 

to better carry out plan-related responsibilities. It 

provides a summary of the statute, recent regulations 

and other guidance issued by the Department.

In addition, some of the provisions discussed involve 

issues for which rules have not yet been finalized. 

Proposed rules, interim final rules, and transition 

periods generally are noted. Periodically check the 

Department of Labor’s Website (dol.gov/ebsa) under 

Laws & Regulations for publication of final rules.

Cumulative List of Self-Compliance Tool Questions for Health Care-Related 

Statutes Added to Part 7 of ERISA

I. Determining Compliance with the HIPAA Provisions in Part 7 of ERISA

If you answer “No” to any of the questions below, the group health plan 

is in violation of the HIPAA provisions in Part 7 of ERISA.

The Health Insurance Portability and Accountability Act (HIPAA) includes 

provisions of Federal law governing health coverage portability, health information 

privacy, administrative simplification, medical savings accounts, and long-term 

care insurance. The Department of Labor is responsible for the law’s portability and 

nondiscrimination requirements.

HIPAA’s portability provisions affect group health plan coverage in the following 

ways:

Provide certain individuals special enrollment rights in group health coverage 

when specific events occur, e.g., birth of a child (regardless of any open season) 

(see Section A), and

Prohibit discrimination in group health plan eligibility, benefits, and premiums 

based on specific health factors (see Sections B-C).

YES NO N/A

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YES NO N/A

While HIPAA previously provided for limits with respect to preexisting condition 

exclusions, new protections under the Affordable Care Act now prohibit the 

imposition of preexisting condition exclusions for plan years beginning on or 

after January 1, 2014. For plan years beginning on or after January 1, 2014, 

plans are no longer required to issue the general notice of preexisting condition 

exclusion or individual notice of period of preexisting condition exclusion. 

HIPAA certificates of creditable coverage must be provided through the end 

of 2014 (December 31, 2014) so that individuals who may need to offset a 

preexisting condition exclusion under a non-calendar year plan would still have 

access to a certificate of creditable coverage through the end of 2014. See 29 CFR 

2590.701-3, 5; 29 CFR 2590.715-2704 (a). 

SECTION A – Compliance with the Special Enrollment Provisions

Group health plans must allow individuals (who are otherwise eligible) to enroll 

upon certain specified events, regardless of any late enrollment provisions, if 

enrollment is requested within 30 days (or 60 days in the case of the special 

enrollment rights added by the Children’s Health Insurance Program

Reauthorization Act of 2009 (CHIPRA), discussed in Question 3) of the event. 

The plan must provide for special enrollment, as follows:

Question 1 – Special enrollment upon loss of other coverage

Does the plan provide full special enrollment rights upon loss of other

coverage? ................................................................................................................

A plan must permit loss-of-coverage special enrollment upon: (1) loss of 

eligibility for group health plan coverage or health insurance coverage; and 

(2) termination of employer contributions toward group health plan coverage. 

See ERISA section 701(f)(1); 29 CFR 2590.701-6(a).

When a current employee loses eligibility for coverage, the plan must permit 

the employee and any dependents to special enroll. See 29 CFR 2590.701-

6(a)(2)(i).

When a dependent of a current employee loses eligibility for coverage, the 

plan must permit the dependent and the employee to special enroll. See 29 

CFR 2590.701-6(a)(2)(ii).

Examples: Examples of reasons for loss of eligibility include: legal separation, 

divorce, death of an employee, termination or reduction in the number of hours 

of employment - voluntary or involuntary (with or without electing COBRA), 

exhaustion of COBRA, reduction in hours, “aging out” under other parent’s 

coverage, or moving out of an HMO’s service area. Loss of eligibility for 

coverage does not include loss due to the individual’s failure to pay premiums or 

termination of coverage for cause - such as for fraud. See 29 CFR 2590.701-6(a)

(3)(i).

When employer contributions toward an employee’s or dependent’s coverage 

terminates, the plan must permit special enrollment, even if the employee or 

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YES NO N/A

dependent did not lose eligibility for coverage. See 29 CFR 2590.701-6(a)

(3)(ii).

Plans must allow an employee a period of at least 30 days to request 

enrollment. See 29 CFR 2590.701-6(a)(4)(i).

Coverage must become effective no later than the first day of the first 

month following a completed request for enrollment. See 29 CFR 

2590.701-6(a)(4)(ii).

Tip: Ensure that the plan permits special enrollment upon all of the loss of 

coverage events described above.

Question 2 – Dependent special enrollment

Does the plan provide full special enrollment rights to individuals upon

marriage, birth, adoption, and placement for adoption? ...............................

Plans must generally permit current employees to enroll upon marriage and 

upon birth, adoption, or placement for adoption of a dependent child. See 

ERISA section 701(f)(2); 29 CFR 2590.701-6(b)(2).

Plans must generally permit a participant’s spouse and new dependents 

to enroll upon marriage, birth, adoption, and placement for adoption. See 

ERISA section 701(f)(2); 29 CFR 2590.701-6(b)(2).

Plans must allow an individual a period of at least 30 days to request 

enrollment. See 29 CFR 2590.701-6(b)(3)(i).

In the case of marriage, coverage must become effective no later than the 

first day of the month following a completed request for enrollment. See 29 

CFR 2590.701-6(b)(3)(iii)(A).

In the case of birth, adoption, or placement for adoption, coverage must 

become effective as of the date of the birth, adoption, or placement for 

adoption. See 29 CFR 2590.701-6(b)(3)(iii)(B).

Tips: Remember to allow all eligible employees, spouses, and new dependents 

to enroll upon these events. Also, ensure that the effective date of coverage 

complies with HIPAA, keeping in mind that some effective dates of coverage 

are retroactive.

Question 3 – Special enrollment rights provided through CHIPRA 

Does the plan provide full special enrollment rights as required under 

CHIPRA? ...........................................................................................................

Under the following conditions a group health plan must allow an employee 

or dependent (who is otherwise eligible) to enroll, regardless of any late 

enrollment provisions, if enrollment is requested within 60 days:

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YES NO N/A

When an employee or dependent’s Medicaid or CHIP coverage is terminated.

When an employee or dependent is covered under a Medicaid plan under title 

XIX of the Social Security Act or under a State Children’s Health Insurance 

Plan (CHIP) under title XXI of the Social Security Act and coverage of the 

employee or dependent is terminated as a result of loss of eligibility, a group 

health plan must allow special enrollment. The employee or dependent must 

request special enrollment within 60 days after the date of termination of 

Medicaid or CHIP coverage. See ERISA section 701(f)(3).

Upon Eligibility for Employment Assistance under Medicaid or CHIP. When 

an employee or dependent becomes eligible for premium assistance, with 

respect to coverage under the group health plan or health insurance coverage 

under a Medicaid plan or State CHIP plan, the group health plan must 

allow special enrollment. The employee or dependent must request special 

enrollment within 60 days after the employee or dependent is determined to 

be eligible for assistance. See ERISA section 701(f)(3).

Note: In addition, employers that maintain a group health plan in a state with a 

CHIP or Medicaid program that provides for premium assistance for group health 

plan coverage must provide a written notice (referred to as the Employer CHIP 

Notice) to each employee to inform them of possible opportunities available 

in the state in which they reside for premium assistance for health coverage of 

employees or dependents. A model notice is available at dol.gov/ebsa/newsroom/

fschip.html. 

Question 4 – Treatment of special enrollees

Does the plan treat special enrollees the same as individuals who enroll when 

first eligible, for purposes of eligibility for benefit packages and premiums? 

If an individual requests enrollment while the individual is entitled to special 

enrollment, the individual is a special enrollee, even if the request for 

enrollment coincides with a late enrollment opportunity under the plan. See 

29 CFR 2590.701-6(d)(1).

Special enrollees must be offered the same benefit packages available to 

similarly situated individuals who enroll when first eligible. (Any difference 

in benefits or cost-sharing requirements for different individuals constitutes a 

different benefit package.) In addition, a special enrollee cannot be required 

to pay more for coverage than a similarly situated individual who enrolls in 

the same coverage when first eligible. See 29 CFR 2590.701-6(d)(2).

Question 5 – Notice of special enrollment rights

Does the plan provide timely and adequate notices of special enrollment

rights? ......................................................................................................................

On or before the time an employee is offered the opportunity to enroll in 

the plan, the plan must provide the employee with a description of special 

enrollment rights.

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YES NO N/A

Tip: Ensure that the special enrollment notice is provided at or before the time 

an employee is initially offered the opportunity to enroll in the plan. This may 

mean breaking it off from the SPD. The plan can include its special enrollment 

notice in the SPD if the SPD is provided at or before the initial enrollment 

opportunity (for example, as part of the application materials). If not, the special 

enrollment notice must be provided separately to be timely. A model notice is 

provided in the Model Disclosures on page 138.

SECTION B – Compliance with the HIPAA Nondiscrimination Provisions

Overview. HIPAA prohibits group health plans and health insurance issuers 

from discriminating against individuals in eligibility and continued eligibility for 

benefits and in individual premium or contribution rates based on health factors. 

These health factors include: health status, medical condition (including both 

physical and mental illnesses), claims experience, receipt of health care, medical 

history, genetic information, evidence of insurability (including conditions 

arising out of acts of domestic violence and participation in activities such as 

motorcycling, snowmobiling, all-terrain vehicle riding, horseback riding, skiing, 

and other similar activities), and disability. See ERISA section 702; 29 CFR 

2590.702.

Similarly Situated Individuals. It is important to recognize that the 

nondiscrimination rules prohibit discrimination within a group of similarly 

situated individuals. Under 29 CFR 2590.702(d), plans may treat distinct 

groups of similarly situated individuals differently, if the distinctions between 

or among the groups are not based on a health factor. If distinguishing among 

groups of participants, plans and issuers must base distinctions on bona fide 

employment-based classifications consistent with the employer’s usual business 

practice. Whether an employment-based classification is bona fide is based 

on relevant facts and circumstances, such as whether the employer uses the 

classification for purposes independent of qualification for health coverage. Bona 

fide employment-based classifications might include: full-time versus part-time 

employee status; different geographic location; membership in a collective 

bargaining unit; date of hire or length of service; or differing occupations. In 

addition, plans may treat participants and beneficiaries as two separate groups

of similarly situated individuals. Plans may also distinguish among beneficiaries. 

Distinctions among groups of beneficiaries may be based on bona fide 

employment-based classifications of the participant through whom the 

beneficiary is receiving coverage, relationship to the participant (such as spouse 

or dependent), marital status, age of dependent children, or any other factor that 

is not a health factor. However, see section 2714 of the PHS Act, as amended by 

the Affordable Care Act and incorporated into section 715 of ERISA, for rules on 

defining dependents under the plan. (For information regarding the Affordable 

Care Act, please visit our Website at dol.gov/ebsa/healthreform).

Exception for benign discrimination: The nondiscrimination rules do not 

prohibit a plan from establishing more favorable rules for eligibility or premium 

rates for individuals with an adverse health factor, such as a disability. See 29 

CFR 2590.702(g).

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YES NO N/A

Check to see that the plan complies with HIPAA’s nondiscrimination provisions 

as follows:

Question 6 – Nondiscrimination in eligibility

Does the plan allow individuals eligibility and continued eligibility under the 

plan regardless of any adverse health factor? .....................................................

Examples of plan provisions that violate ERISA section 702(a) because they 

discriminate in eligibility based on a health factor include:

Plan provisions that require “evidence of insurability,” such as passing a 

physical exam, providing a certification of good health, or demonstrating 

good health through answers to a health care questionnaire in order to 

enroll. See 29 CFR 2590.702(b)(1).

Also, note that it may be permissible for plans to require individuals to 

complete physical exams or health care questionnaires for purposes other 

than for determining eligibility to enroll in the plan, such as for determining 

an appropriate blended, aggregate group rate for providing coverage to the 

plan as a whole. See 29 CFR 2590.702(b)(1)(iii) Example 1.

Tip: Eliminate plan provisions that deny individuals eligibility or continued 

eligibility under the plan based on a health factor, even if such provisions apply 

only to late enrollees.

Question 7 – Nondiscrimination in benefits

Does the plan uniformly provide benefits to participants and beneficiaries, 

without directing any benefit restrictions at individual participants and 

beneficiaries based on a health factor? ................................................................

Benefits provided must be uniformly available and any benefit restrictions 

must be applied uniformly to all similarly situated individuals and cannot 

be directed at any individual participants or beneficiaries based on a health 

factor. If benefit exclusions or limitations are applied only to certain 

individuals based on a health factor, this would violate ERISA section 702(a) 

and 29 CFR 2590.702(b)(2).

Examples of plan provisions that may be permissible under ERISA section

702(a) include:

Limits or exclusions for certain types of treatments or drugs,

Limitations based on medical necessity or experimental treatment, and

Cost-sharing,

if the limit applies uniformly to all similarly situated individuals and is not 

directed at individual participants or beneficiaries based on a health factor. 

However, other provisions of law, such as the Affordable Care Act, may prohibit 

some of these limitations (such as PHS Act section 2713, requiring plans and 

issuers to provide coverage for, and not impose cost-sharing requirements with 

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YES NO N/A

respect to, certain recommended preventive services. (For information regarding 

the Affordable Care Act, please visit our Website at dol.gov/ebsa/healthreform).

Question 8 – Source-of-injury restrictions

If the plan imposes a source-of-injury restriction, does it comply with the

HIPAA nondiscrimination provisions? ................................................................

Plans may exclude benefits for the treatment of certain injuries based on the 

source of that injury, except that plans may not exclude benefits otherwise 

provided for treatment of an injury if the injury results from an act of 

domestic violence or a medical condition. See 29 CFR 2590.702(b)(2)(iii).

An example of a permissible source-of-injury exclusion would include:

A plan provision that provides benefits for head injuries generally, but

excludes benefits for head injuries sustained while participating in 

bungee jumping.

An impermissible source-of-injury exclusion would include:

A plan provision that generally provides coverage for medical/surgical 

benefits, including hospital stays that are medically necessary, but 

excludes benefits for self-inflicted injuries or attempted suicide. This is 

impermissible because the plan provision excludes benefits for treatment 

of injuries that may result from a medical condition (depression).

If the plan does not impose a source-of-injury restriction, check “N/A” and 

skip to Question 9.

Question 9 – Nondiscrimination in premiums or contributions

Does the plan comply with HIPAA’s nondiscrimination rules regarding 

individual premium or contribution rates? .........................................................

Under ERISA section 702(b) and 29 CFR 2590.702(c), plans may not require 

an individual to pay a premium or contribution that is greater than a premium 

or contribution for a similarly situated individual enrolled in the plan on the 

basis of any health factor. For example, it would be impermissible for a plan 

to require certain full-time employees to pay a higher premium than other 

full-time employees based on their prior claims experience.

Nonetheless, the nondiscrimination rules do not prohibit a plan from 

providing a reward based on adherence to a wellness program. See ERISA 

section 702(b)(2)(B); PHS Act section 2705. Final rules for wellness 

programs were published on June 6, 2013 at 29 CFR 2590.702 and 29 

CFR 2590.715-2705. (These rules were issued through authority under 

the Affordable Care Act (PHS section 2705) and under the HIPAA 

nondiscrimination provisions. These rules apply to both grandfathered and 

nongrandfathered group health plans.)

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YES NO N/A

To help evaluate whether this exception is available, refer to Section C on page 

70. Once you have completed Section C, return to this page to continue with 

Question 10, below.

Question 10 – List billing

Is there compliance with the list billing provisions? ...........................................

Under 29 CFR 2590.702(c)(2)(ii), plans and issuers may not charge or quote 

an employer a different premium for an individual in a group of similarly 

situated individuals based on a health factor. This practice is commonly 

referred to as list billing. If an issuer is list billing an employer and the plan is 

passing the separate and different rates on to the individual participants and 

beneficiaries, both the plan and the issuer are violating the prohibition against 

discrimination in premium rates. This does not prevent plans and issuers 

from taking the health factors of each individual into account in establishing 

a blended/aggregate rate for providing coverage to the plan. 

Note: Plans and issuers are not permitted to adjust premium or contribution 

rates based on genetic information of one or more individuals in the group. 

For more information on discrimination based on genetic information, refer to 

Section V. Note also that, under the Affordable Care Act, certain premium rating 

requirements apply to health insurance coverage in the small group market. Visit 

HealthCare.gov for more information.

Question 11 – Nonconfinement clauses

Is the plan free of any nonconfinement clauses? .................................................

Typically, a nonconfinement clause will deny or delay eligibility for some 

or all benefits if an individual is confined to a hospital or other health 

care institution. Sometimes nonconfinement clauses also deny or delay 

eligibility if an individual cannot perform ordinary life activities. Often a 

nonconfinement clause is imposed only with respect to dependents, but they 

sometimes are also imposed with respect to employees. 29 CFR 2590.702(e)

(1) explains that these nonconfinement clauses violate ERISA sections 702(a) 

(if the clause delays or denies eligibility) and 702(b) (if the clause raises 

individual premiums).

Tip: Delete all nonconfinement clauses.

Question 12 – Actively-at-work clauses

Is the plan free of any impermissible actively-at-work clauses?.........................

Typically, actively-at-work provisions delay eligibility for benefits based on 

an individual being absent from work. 29 CFR 2590.702(e)(2) explains that 

actively-at-work provisions generally violate ERISA sections 702(a) (if the 

clause delays or denies eligibility) and 702(b) (if the clause raises individual 

premiums or contributions), unless absence from work due to a health factor

is treated, for purposes of the plan, as if the individual is at work. 

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Nonetheless, an exception provides that a plan may establish a rule for 

eligibility that requires an individual to begin work for the employer 

sponsoring the plan before eligibility commences. Further, plans may 

establish rules for eligibility or set any individual’s premium or contribution 

rate in accordance with the rules relating to similarly situated individuals 

in 29 CFR 2590.702(d). For example, a plan that treats full-time and parttime employees differently for other employment-based purposes, such as 

eligibility for other employee benefits, may distinguish in rules for eligibility 

under the plan between full-time and part-time employees.

Tip: Carefully examine any actively-at-work provision to ensure consistency 

with HIPAA.

SECTION C – Compliance with the Wellness Program Provisions

Use the following questions to help determine whether the plan offers a program 

of health promotion or disease prevention that is required to comply with 

the Department’s final wellness program regulations and, if so, whether the 

program is in compliance with the regulations. See final regulations issued by 

the Departments on June 6, 2013 at 29 CFR 2590.702 and 29 CFR 2590.715-

2705. These regulations use joint authority under HIPAA and the ACA and 

apply for plan years beginning on or after January 1, 2014, however regulations 

under HIPAA’s nondiscrimination provisions relating to wellness programs 

were applicable for plan years prior to the applicability of these final wellness 

program rules. The requirements relating to wellness programs apply to both 

grandfathered and non-grandfathered group health plans (See further discussion 

of grandfather status under the ACA section VII, A of this tool).

Question 13 – Does the plan have a wellness program? .....................................

A wide range of wellness programs exist to promote health and prevent 

disease. However, these programs are not always labeled “wellness 

programs.” Examples include: a program that reduces individuals’ costsharing for complying with a preventive care plan; a diagnostic testing 

program for health problems; and rewards for attending educational classes, 

following healthy lifestyle recommendations, or meeting certain biometric 

targets (such as weight, cholesterol, nicotine use, or blood pressure targets).

Tip: Ignore the labels – wellness programs can be called many things. Other 

common names include: disease management programs, smoking cessation 

programs, and case management programs.

Question 14 – Is the wellness program part of a group health plan? ................

The wellness program is only subject to Part 7 of ERISA if it is part of a 

group health plan. If the employer operates the wellness program separate 

from the group health plan, the program may be regulated by other laws, but 

it is not subject to the group health plan rules discussed here. 

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YES NO N/A

Example: An employer institutes a policy that any employee who smokes will 

be fired. Here, the anti-smoking policy is not part of the group health plan, so the 

wellness program rules do not apply. (But see 29 CFR 2590.702, which clarifies 

that compliance with the HIPAA nondiscrimination rules, including the wellness 

program rules, is not determinative of compliance with any other provision of 

ERISA or any other State or Federal law, such as the Americans with Disabilities 

Act.)

Question 15 – Does the program discriminate based on a health factor (i.e., is 

it a health-contingent program)?...........................................................................

A program discriminates based on a health factor if it requires an individual 

to meet a standard related to a health factor in order to obtain a reward (or 

requires an individual to undertake more than a similarly situated individual 

based on a health factor in order to obtain the same reward). A reward can be 

in the form of a discount or rebate of a premium or contribution, a waiver of 

all or part of a cost-sharing mechanism (such as deductibles, copayments, or 

coinsurance), an additional benefit, or any other financial or other incentive. 

A reward can also be the avoidance of a penalty (such as the absence of a 

surcharge, or other financial or nonfinancial disincentive).

If none of the conditions for obtaining a reward is based on an individual 

satisfying a standard that is related to a health factor (or if a wellness 

program does not provide a reward), the wellness program is a participatory 

wellness program. See 29 CFR 2590.702 (f)(1)(ii).

Example 1: Plan participants who have a cholesterol level under 200 will 

receive a premium reduction of 30 percent. In this Example 1, the plan requires 

individuals to meet a standard related to a health factor in order to obtain a 

reward.

Example 2: A plan requires all eligible employees to complete a health risk 

assessment to enroll in the plan. Employee answers are fed into a computer 

that identifies risk factors and sends educational information to the employee’s 

home address. In this Example 2, the requirement to complete the assessment 

does not, itself, discriminate based on a health factor. However, if the plan used 

individuals’ specific health information to discriminate in individual eligibility, 

benefits, or premiums, there would be discrimination based on a health factor.

Tip: Participatory wellness programs are permissible, provided the program is 

made available to all similarly situated individuals, regardless of health status. 

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If you answered “No” to ANY of the above questions 13-15, STOP. The plan is not subject to the HIPAA 

wellness rules. If you are completing this section as part of a review of your plan, please continue to Section D. 
YES NO N/A

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Question 16 – If the program discriminates based on a health factor, is the 

program saved by the benign discrimination provisions? .................................

The Department’s regulations at 29 CFR 2590.702(g) permit discrimination 

in favor of an individual based on a health factor.

Example: A plan grants participants who have diabetes a waiver of the plan’s 

annual deductible if they enroll in a disease management program that consists 

of attending educational classes and following their doctor’s recommendations 

regarding exercise and medication. This is benign discrimination because the 

program is offering a reward to individuals based on an adverse health factor.

Tip: The benign discrimination exception is NOT available if the plan asks 

diabetics to meet a standard related to a health factor (such as maintaining 

a certain body mass index (BMI)) in order to get a reward. In this case, an 

intervening discrimination is introduced and the plan cannot rely solely on the 

benign discrimination exception.

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If you answered “Yes” to this question, STOP. There does not appear to be a violation of the wellness program 

rules. If you are completing this section as part of a review of your plan, please continue to Section D.

If you answered “No” to this question, proceed to Questions 17 and 18. The health-contingent wellness 

program must meet the 5 criteria.

Question 17— Within the health-contingent wellness program category, is 

the program an activity-only program?................................................................

An activity-only wellness program is a type of health-contingent wellness 

program that requires an individual to perform or complete an activity 

related to a health factor in order to obtain a reward but does not require 

the individual to attain or maintain a specific health outcome. See 29 CFR 

2590.702 (f)(1)(iv).

Examples include walking, diet or exercise programs.

If you answered “Yes” to this question, proceed to Question 19.

If you answered “No” to this question, proceed to Question 18.

Question 18— Within the health-contingent wellness program category, is 

the program an outcome-based program?............................................................

An outcome-based wellness program is a type of health-contingent wellness 

program that requires an individual to attain or maintain a specific health 

outcome (such as not smoking or attaining certain results on biometric 

screenings) in order to obtain a reward. See 29 CFR 2590.702 (f)(1)(iv).
YES NO N/A

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Question 19—Is the health-contingent program in compliance with the five 

requirements?..............................................................................................................

A. Is the amount of the reward offered under the plan limited to 30 percent 

(or 50 percent for programs designed to prevent or reduce tobacco use) 

of the applicable cost of coverage? (29 CFR 2590.702 (f)(3)(ii) and 29 

CFR 2590.702(f)(4)(ii)).....................................................................................

If only employees are eligible to participate, the amount of the reward must 

not exceed 30 percent (or 50 percent) of the cost of employee-only coverage 

under the plan. If employees and any class of dependents are eligible to 

participate, the reward must not exceed 30 percent of the cost of coverage in 

which an employee and any dependents are enrolled.

The 30 percent (or 50 percent) limitation on the amount of the reward 

applies to all of a plan’s wellness programs that require individuals to meet a 

standard related to a health factor.

Example: If the plan has two wellness programs with standards related to a 

health factor, a 20 percent reward for meeting a BMI target and a 10 percent 

reward for meeting a cholesterol target, it would meet the maximum limit on 

the total reward available, which is 30 percent. If instead, the program offered 

a 20 percent reward for meeting a body mass index target, a 10 percent reward 

for meeting a cholesterol target, and a 10 percent reward for completing a health 

risk assessment (regardless of any individual’s specific health information), 

the rewards would not need to be adjusted because the 10 percent reward for 

completing the health risk assessment does not require individuals to meet a 

standard related to a health factor.

B. Is the plan reasonably designed to promote health or prevent disease?

(29 CFR 2590.702(f)(2)(iii) and 29 CFR 2590.702(f)(4)(iii)).........................

The program must be reasonably designed to promote health or prevent 

disease. The program should have a reasonable chance of improving the 

health of or preventing disease in participating individuals, not be overly 

burdensome, not be a subterfuge for discriminating based on a health 

factor, and not be highly suspect in the method chosen to promote health 

or prevent disease. This determination is based on all the relevant facts and 

circumstances.

C. Are individuals who are eligible to participate given a chance to qualify 

at least once per year? (29 CFR 2590.702(f)(3)(i) and 29 CFR 2590.702(f)

(4)(i))..................................................................................................................
YES NO N/A

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D. Is the reward available to all similarly situated individuals? Does the 

program offer a reasonable alternative standard? (29 CFR 2590.702(f)

(3)(iv) and 29 CFR 2590.702(f)(4)(iv))............................................................

The wellness program rules require that the reward be available to all 

similarly situated individuals. A component of meeting this criterion is 

that the program must have a reasonable alternative standard (or waiver 

of the otherwise applicable standard) that is furnished by the plan upon a 

participant’s request.

Activity-only programs

A reasonable alternative standard must be available for obtaining the reward 

for any individual for whom, for that period, it is unreasonably difficult 

due to a medical condition to satisfy the otherwise applicable standard or 

medically inadvisable to attempt to satisfy the otherwise applicable standard. 

See 29 CFR 2590.702(f)(3)(iv)(A)(1)

If reasonable under the circumstances, a plan or issuer may seek verification, 

such as a statement from an individual’s personal physician, that a health 

factor makes it unreasonably difficult for the individual to satisfy, or 

medically inadvisable for the individual to attempt to satisfy, the otherwise 

applicable standard. See 29 CFR 2590.702(f)(3)(iv)(A)(2)

Outcome-based wellness programs

The reasonable alternative standard must be available to any individual 

who does not meet the initial standard based on the measurement, test, or 

screening. See 29 CFR 2590.702(f)(4)(iv)(A) 

Plans may not seek verification, such as a statement from an individual’s 

personal physician, that a health factor makes it unreasonably difficult for the 

individual to satisfy, or medically inadvisable for the individual to attempt to 

satisfy the standard. See 29 CFR 2590.702(f)(4)(iv)(E)

E. Does the plan disclose the availability of a reasonable alternative 

standard in all plan materials describing the program? (29 CFR 

2590.702(f)(3)(v)) .............................................................................................

The plan or issuer must disclose the availability of a reasonable alternative 

standard in all plan materials describing the program and in any disclosure 

that an individual did not satisfy an initial outcome-based standard. If plan 

materials merely mention that the program is available, without describing its 

terms, this disclosure is not required.

Tip: The disclosure does not have to say what the reasonable alternative standard 

is in advance. The plan can individually tailor the standard for each individual, on 

a case-by-case basis.
YES NO N/A

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The following sample language can be used to satisfy this requirement: “If it is 

unreasonably difficult due to a medical condition for you to achieve the standards 

for the reward under this program, or if it is medically inadvisable for you to 

attempt to achieve the standards for the reward under this program, call us at 

[insert telephone number] and we will work with you to develop another way to 

qualify for the reward.” 

Note: This section highlights the five requirements for a health-contingent 

program and briefly describes the separate requirements for an activity-only 

program and an outcome-based program. For more information on the five 

requirements and differences between the activity-only and outcome-based 

programs, please visit our Website at dol.gov/ebsa/healthreform.

Taking into consideration whether the health-contingent wellness program is activity-only or outcome-based: 

If you answered “Yes” to all of the 5 questions on wellness program criteria, there does not appear to be a 

violation of the HIPAA wellness program rules.

If you answered “No” to any of the 5 questions on wellness program criteria, the plan has a wellness program 

compliance issue. Specifically,

Violation of the general benefit discrimination rule (29 CFR 2590.702(b)(2)(i), 29 CFR 2590.715-

2705(a)) – If the wellness program varies benefits, including cost-sharing mechanisms (such as deductible, 

copayment, or coinsurance) based on whether an individual meets a standard related to a health factor and the 

program does not satisfy the requirements of 29 CFR 2590.702(f), the plan is impermissibly discriminating in 

benefits based on a health factor. The wellness program exception at 29 CFR 2590.702(b)(2)(ii) is not satisfied 

and the plan is in violation of 29 CFR 2590.702(b)(2)(i) and 29 CFR 2590.715-2705(a).

Violation of general premium discrimination rule (29 CFR 2590.702(c)(1), 29 CFR 2590.715-2705(a)) – 

If the wellness program varies the amount of premium or contribution it requires similarly situated individuals 

to pay based on whether an individual meets a standard related to a health factor and the program does not 

satisfy the requirements of 29 CFR 2590.702(f), the plan is impermissibly discriminating in premiums based 

on a health factor. The wellness program exception at 29 CFR 2590.702(c)(3) is not satisfied and the plan is in 

violation of 29 CFR 2590.702(c)(1) and 29 CFR 2590.715.2705(a).
YES NO N/A

SECTION D – Compliance with the MEWA or Multiemployer Plan 

Guaranteed Renewability Provisions

If the plan is a multiple employer welfare arrangement (MEWA) or a 

multiemployer plan, it is required to provide guaranteed renewability of coverage 

in accordance with ERISA section 703. If the plan is a MEWA or multiemployer 

plan, it must meet the criteria described in Question 20. If the plan is not a 

MEWA or multiemployer plan, check “N/A” and go to Part II of this

self-compliance tool. ................................................................................................

Question 20 – Multiemployer plan and MEWA guaranteed renewability 

If the plan is a multiemployer plan, or a MEWA, does the plan provide 

guaranteed renewability? ......................................................................................

Group health plans that are multiemployer plans or MEWAs may not deny an 

employer continued access to the same or different coverage, other than:

For nonpayment of contributions;

For fraud or other intentional misrepresentation by the employer;

For noncompliance with material plan provisions;

Because the plan is ceasing to offer coverage in a geographic area;

In the case of a plan that offers benefits through a network plan, there 

is no longer any individual enrolled through the employer who lives, 

resides, or works in the service area of the network plan and the plan 

applies this paragraph uniformly without regard to the claims experience 

of employers or any health-related factor in relation to such individuals 

or dependents; or

For failure to meet the terms of an applicable collective bargaining

agreement, to renew a collective bargaining or other agreement requiring 

or authorizing contributions to the plan, or to employ employees covered 

by such agreement.

See ERISA section 703.

**Note: The Public Health Service (PHS) Act contains guaranteed renewability 

requirements for issuers.

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II. Determining Compliance with the Mental Health Parity Act (MHPA) and 

Mental Health Parity and Addiction Equity Act (MHPAEA) Provisions in Part 7 of ERISA

(together, the mental health parity provisions)

If you answer “No” to any of the questions below, the group health plan is in violation of the mental health 

parity provisions in Part 7 of ERISA.

Introduction

If the plan provides either mental health or substance use disorder benefits, in 

addition to medical/surgical benefits, the plan may be subject to the mental health 

parity provisions in Part 7 of ERISA. Retiree-only plans, and those offering 

excepted benefits, are generally not subject to the mental health parity provisions 

under part 7 of ERISA. See 29 CFR 2590.732 for further discussion. (Note: if 

under an arrangement(s) to provide medical care by an employer or employee 

organization, any participant or beneficiary can simultaneously receive coverage for 

medical/surgical benefits and mental health or substance use disorder benefits, the 

mental health parity requirements apply separately with respect to each combination 

of medical/surgical benefits and mental health/substance use disorder benefits and 

all such combinations are considered to be a single group health plan. See 29 CFR 

2590.712(e).) If this is the case, answer Questions 21-28.

If the plan does not provide mental health or substance use disorder benefits, check 

“N/A” here and skip to Part III of this checklist. Also, the plan may be exempt from 

the mental health parity provisions under the small employer (50 employees or 

fewer) exception or the increased cost exception. (To be eligible for the increased 

cost exception, the plan must have filed a notice with EBSA and notified participants 

and beneficiaries.) Unless a plan is exempt as previously described, the requirements 

of MHPAEA generally apply to both grandfathered and non-grandfathered group 

health plans13, as defined under the Affordable Care Act. Note that the Department 

of Health and Human Services’ final rule regarding essential health benefits (EHB) 

requires health insurance issuers offering non-grandfathered health insurance 

coverage in the small group market through an Affordable Health Insurance 

Exchange (Marketplace) or outside of a Marketplace to comply with MHPAEA in 

order to satisfy the requirement to provide EHB. 

In addition, under MHPAEA, if a plan or issuer provides mental health or substance 

use disorder benefits in any classification described in the MHPAEA final regulation, 

mental health or substance use disorder benefits must be provided in every 

classification in which medical/surgical benefits are provided. Under the Affordable 

Care Act, PHSA section 2713, non-grandfathered group health plans are required 

to provide certain preventive services with no cost-sharing, which includes, among 

YES NO N/A

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13 Mental health and substance use disorder benefits are defined under the terms of the plan, in accordance 

with applicable Federal and State law. Any condition or disorder defined by the plan as being or as not being 

a mental health condition or substance use disorder must be defined in a manner consistent with generally 

recognized independent standards of current medical practice (e.g., the most current version of the DSM or 

ICD or State guidelines).
YES NO N/A

other things, alcohol misuse screening and counseling, depression screening, 

and tobacco use screening. However, the Departments clarified that nothing in 

MHPAEA requires a group health plan that provides mental health or substance 

use disorder benefits only to the extent required under PHSA section 2713, 

to provide additional mental health or substance use disorder benefits in any 

classification.14 

If the plan is exempt, check “N/A” here and skip to Part III of this checklist. .......

SECTION A. Lifetime and Annual Limits

Question 21 – Does the plan comply with the mental health parity 

requirements regarding lifetime dollar limits on mental health/substance use 

disorder benefits? ...................................................................................................

A plan generally may not impose a lifetime dollar limit on mental health/

substance use disorder benefits that is lower than the lifetime dollar limit 

imposed on medical/ surgical benefits. See 29 CFR 2590.712(b). (Only 

limits on what the plan would pay are taken into account, as contrasted with 

limits on what an individual may be charged.)

Note: These provisions are affected by section 2711 of the Public Health Service 

Act, as amended by the Patient Protection and Affordable Care Act. Specifically, 

PHS Act section 2711 generally prohibits lifetime and annual dollar limits on 

essential health benefits (EHB), which includes mental health and substance 

use disorder services. Accordingly, for mental health and substance use disorder 

benefits that are EHB, plans cannot impose lifetime limits. For mental health and 

substance use disorder benefits that are not EHB, parity requirements regarding 

aggregate lifetime dollar limits apply. (For information regarding the Affordable 

Care Act, please visit our Website at dol.gov/ebsa/healthreform).

Question 22 – Does the plan comply with the mental health parity 

requirements regarding annual dollar limits on mental health/substance use 

disorder benefits? ...................................................................................................

A plan generally may not impose an annual dollar limit on mental health/

substance use disorder benefits that is lower than the annual dollar limit 

imposed on medical/surgical benefits. See 29 CFR 2590.712(b). (Again, only 

limits on what the plan would pay are taken into account, as contrasted with 

limits on what an individual may be charged.)

Tip: There is a different rule for cumulative limits other than aggregate lifetime 

or annual dollar limits discussed later in this checklist at Question 26. A plan 

may impose annual out-of-pocket dollar limits on participants and beneficiaries if 

done in accordance with the rule regarding cumulative limits.

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14 See 29 CFR 2590.712(e)(3)(i) 
YES NO N/A

Note: These provisions are affected by section 2711 of the Public Health Service 

Act, as amended by the Patient Protection and Affordable Care Act. Specifically, 

PHS Act section 2711 generally prohibits annual dollar limits on essential health 

benefits, which includes mental health and substance use disorder services. 

Accordingly, the parity requirements regarding annual dollar limits only apply to the 

provision of mental health and substance use disorder benefits that are not Essential 

Health Benefits. Note also that for plan years beginning in 2015, the annual 

limitation on an individual’s maximum out-of-pocket (MOOP) costs in effect under 

ACA is $6,600 for self-only coverage and $13,200 for coverage other than self-only 

coverage. See ACA Implementation FAQ Part XXI at dol.gov/ebsa/faqs/faq-aca21.

html.

(For information regarding the Affordable Care Act, please visit our Website at

dol.gov/ebsa/healthreform).

SECTION B. Financial Requirements and Quantitative Treatment Limitations 

Question 23 – Does the plan comply with the mental health parity 

requirements for parity in financial requirements and quantitative treatment 

limitations? ..................................................................................................................

A plan may not impose a financial requirement or quantitative treatment 

limitation applicable to mental health/substance use disorder benefits in any 

classification that is more restrictive than the predominant financial requirement 

or quantitative treatment limitation of that type that is applied to substantially all 

medical/surgical benefits in the same classification. See 29 CFR 2590.712(c)(2).

Types of financial requirements include deductibles, copayments, 

coinsurance, and out-of-pocket maximums. See 29 CFR 2590.712(c)(1)(ii).

Types of quantitative treatment limitations include annual, episode, and 

lifetime day and visit limits, for example, number of treatments, visits, or 

days of coverage. See 29 CFR 2590.712(c)(1)(ii). 

The six classifications* of benefits are:

1) inpatient, in-network;

2) inpatient, out-of-network;

3) outpatient, in-network;

4) outpatient, out-of-network;

5) emergency care; and

6) prescription drugs.

See 29 CFR 2590.712(c)(2)(ii).

Under the plan, any financial requirement or quantitative treatment limitation 

that applies to mental health/substance use disorder benefits within a particular 

classification cannot be more restrictive than the predominant requirement or 

limitation that applies to substantially all medical/surgical benefits within the 

same classification. See 29 CFR 2590.712(c)(2).

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*See page 81 for special rules related to classifications.
YES NO N/A

Detailed steps for applying these rules are set forth below:

To determine compliance, each type of financial requirement or quantitative 

treatment limitation within a coverage unit15 must be analyzed separately 

within each classification. See 29 CFR 2590.712(c)(2)(i). If a plan applies 

different levels of a financial requirement or quantitative treatment limitation 

to different coverage units in a classification of medical/surgical benefits (for 

example, a $15 copayment for self-only and a $20 copayment for family 

coverage), the predominant level is determined separately for each coverage 

unit. See 29 CFR 2590.712(c)(3)(ii).

Step One: First determine if a particular type of financial requirement or 

quantitative treatment limitation applies to substantially all medical/surgical 

benefits in the relevant classification of benefits.

Generally, a financial requirement or quantitative treatment limitation 

is considered to apply to substantially all medical/surgical benefits 

if it applies to at least two-thirds of the medical/surgical benefits in 

the classification. See 29 CFR 2590.712(c)(3)(i)(A). This two-thirds 

calculation is generally based on the dollar amount of plan payments 

expected to be paid for the plan year. See 29 CFR 2590.712(c)(3)(i)(C).

(Any reasonable method can be used for this calculation. See 29 CFR 

2590.712(c)(3)(i)(E).)

Step Two: If the type of financial requirement or quantitative treatment 

limitation applies to at least two-thirds of medical/surgical benefits in that 

classification, then determine the predominant level of that type of financial 

requirement or quantitative treatment limitation that applies to medical/

surgical benefits subject to that type of financial requirement or quantitative 

treatment limitation in that classification of benefits. (Note: If the type of 

financial requirement or quantitative treatment limitation does not apply to 

at least two-thirds of medical/surgical benefits in that classification, it cannot 

apply to mental health/substance use disorder benefits in that classification.)

Generally, the predominant level will apply to more than one-half 

of the medical/surgical benefits in that classification subject to the 

financial requirement or quantitative treatment limitation. See 29 CFR 

2590.712(c)(3)(i)(B)(1). If there is no single level that applies to more 

than one-half of medical/surgical benefits in the classification, the plan 

can combine levels until the combination of levels applies to more than 

one-half of medical/surgical benefits subject to the financial requirement 

or quantitative treatment limitation in the classification. The least 

restrictive level within the combination is considered the predominant 

level.16 See 29 CFR 2590.712(c)(3)(i)(B)(2).

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15 Coverage unit refers to the way in which a plan groups individuals for purposes of determining benefits, or premiums or 

contributions, for example, self-only, family, and employee plus spouse. See 29 CFR 2590.712(c)(1)(iv). 16 For a simpler method of compliance, a plan may treat the least restrictive level of financial requirement or treatment limitation 

applied to medical/surgical benefits as predominant.
YES NO N/A

*Note: Special rules related to classifications

1. Special rule for outpatient sub-classifications: 

For purposes of determining parity for outpatient benefits (in-network and 

out-of network), a plan or issuer may divide its benefits furnished on an 

outpatient basis into two sub-classifications: (1) office visits and (2) all 

other outpatient items and services, for purposes of applying the financial 

requirement and treatment limitation rules.

After the sub-classifications are established, the plan or issuer may not 

impose any financial requirement or quantitative treatment limitation on 

mental health/substance use disorder benefits in any sub-classification (i.e., 

office visits or non-office visits) that is more restrictive than the predominant 

financial requirement or treatment limitation that applies to substantially all 

medical/surgical benefits in the sub-classification using the methodology set 

forth in the final rules.

Other than as explicitly permitted under the final rules, sub-classifications 

are not permitted when applying the financial requirement and treatment 

limitation rules under MHPAEA. Accordingly, separate sub-classifications 

for generalists and specialists are not permitted. (See Question 24 for more 

information regarding specialists and generalists.)

2. Special rule for prescription drug benefits:

There is a special rule for multi-tiered prescription drug benefits. A plan 

complies with the mental health parity provisions if the plan applies different 

levels of financial requirements to different tiers of prescription drug benefits 

based on reasonable factors and without regard to whether a drug is generally 

prescribed for medical/surgical or mental health/substance use disorder 

benefits. Reasonable factors include cost, efficacy, generic versus brand 

name, and mail order versus pharmacy pick-up. See 29 CFR 2590.712(c)(3)

(iii).

3. Special rule for multiple network tiers:

There is a special rule for multiple network tiers. If a plan provides 

benefits through multiple tiers of in-network providers (such as in-network 

preferred and in-network participating providers), the plan may divide 

its benefits furnished on an in-network basis into sub-classifications that 

reflect network tiers, if the tiering is based on reasonable factors (such as 

quality, performance, and market standards) and without regard to whether a 

provider provides services with respect to medical/surgical benefits or mental 

health or substance use disorder benefits. After the sub-classifications are 

established, the plan or issuer may not impose any financial requirement or 

treatment limitation on mental health or substance use disorder benefits in 

any sub-classification that is more restrictive than the predominant financial 

requirement or treatment limitation that applies to substantially all medical/

surgical benefits in the sub-classification.

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Tips: Ensure that the plan does not impose cost-sharing requirements or 

quantitative treatment limitations that are applicable only to mental health/

substance use disorder benefits.

Ensure that with respect to conducting the predominant/substantially all test, 

the analysis must be done with respect to the dollar amount of all plan payments 

expected to be paid for the relevant plan year. Basing the analysis on an insurer’s 

entire overall book of business for the year or book of business in a specific 

region or State is not a permissible analysis for demonstrating compliance with 

MHPAEA.

Question 24 – If the plan imposes a higher, specialist financial requirement, 

such as a copay, on mental health/substance use disorder benefits, can the 

plan demonstrate that the specialist level of the financial requirement is the 

predominant level that applies to substantially all medical/surgical benefits 

within the classification? ........................................................................................

The six classifications outlined in Question 23 are the only classifications

that may be used when determining the predominant financial requirements 

or quantitative treatment limitations that apply to substantially all medical/

surgical benefits. See 29 CFR 2590.712(c)(2)(ii). A plan may not use a 

separate sub-classification under these classifications for generalists and 

specialists. See preamble language at 75 FR 5413.

Tip: A plan may still be able to impose the specialist level of a financial 

requirement or quantitative treatment limitation if it is the predominant level that 

applies to substantially all medical/surgical benefits within a classification. For 

example, if the specialist level of copay is the predominant level of copay that 

applies to substantially all medical/surgical benefits in the outpatient, in-network 

classification, the plan may apply the specialist level copay to mental health/

substance use disorder benefits in the outpatient, in-network classification. See 29 

CFR 2590.712(c)(3).

SECTION C. Coverage in all Classifications

Question 25 – Does the plan comply with the mental health parity 

requirements for coverage in all classifications? .................................................

If a plan provides mental health/substance use disorder benefits in any 

classification of benefits (the classifications are listed in Question 23), 

mental health/substance use disorder benefits must be provided in every 

classification in which medical/surgical benefits are provided. See 29 CFR 

2590.712(c)(2)(ii)(A).

In determining the classification in which a particular benefit belongs, a 

plan must apply the same standards to medical/surgical benefits and to 

mental health/substance use disorder benefits. See 29 CFR 2590.712(c)

(2)(ii)(A). This rule also applies to intermediate services provided under 

the plan or coverage. Plans must assign covered intermediate mental 

health and substance use disorder benefits (such as residential treatment, 

partial hospitalization and intensive outpatient treatment) to the 

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existing six classifications in the same way that they assign comparable 

intermediate medical/surgical benefits to these classifications. For 

example, if a plan classifies skilled nursing and rehabilitation hospitals 

for medical/surgical benefits as inpatient benefits, it must classify 

residential treatment facilities for mental health and substance use 

disorder benefits as inpatient benefits. If a plan treats home health care 

as an outpatient benefit, then any covered intensive outpatient mental 

health/substance use disorder services and partial hospitalization must 

be considered outpatient benefits as well. A plan must also comply with 

MHPAEA’s NQTL rules, discussed in the following section, in assigning 

any benefits to a particular classification. See 29 CFR 2590.712(c)(4). 

Tips: 

If the plan does not contract with a network of providers, all benefits are outof-network. If a plan that has no network imposes a financial requirement or 

treatment limitation on inpatient or outpatient benefits, the plan is imposing 

the requirement or limitation within classifications (inpatient, out-of-network 

or outpatient, out-of-network), and the rules for parity will be applied 

separately for the different classifications. See 29 CFR 2590.712(c)(2)(ii)(C), 

Example 1.

If a plan covers the full range of medical/surgical benefits (in all 

classifications, both in-network and out-of-network), beware of exclusions on 

out-of-network mental health and substance use disorder benefits.

The plan must ensure that all combinations of benefits comport with parity.

Note: As explained in the Introduction to this section, nothing in MHPAEA 

requires a non-grandfathered group health plan that provides mental health or 

substance use disorder benefits only to the extent required under PHSA section 

2713, to provide additional mental health or substance use disorder benefits in 

any classification.

SECTION D. Cumulative Financial Requirements and Treatment 

Limitations

Question 26 – Does the plan comply with the mental health parity provisions 

on cumulative financial requirements or cumulative quantitative treatment 

limitations? .............................................................................................................

A plan may not apply any cumulative financial requirement or cumulative 

quantitative treatment limitation for mental health/substance use disorder 

benefits in a classification that accumulates separately from any established 

for medical/surgical benefits in the same classification. See 29 CFR 

2590.712(c)(3)(v).

Cumulative financial requirements are financial requirements that 

determine whether or to what extent benefits are provided based on 

accumulated amounts and include deductibles and out-of-pocket 

maximums (but do not include aggregate lifetime or annual dollar limits 

because these two terms are excluded from the meaning of financial 

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requirements). See 29 CFR 2590.712(a).

Cumulative quantitative treatment limitations are treatment limitations 

that determine whether or to what extent benefits are provided based on 

accumulated amounts, such as annual or lifetime day or visit limits. See 

29 CFR 2590.712(a).

For example, a plan may not impose an annual $250 deductible on all 

medical/surgical benefits and a separate $250 deductible on all mental health/

substance use disorder benefits.

SECTION E. Nonquantitative Treatment Limitations

Question 27 – Does the plan comply with the mental health parity provisions 

for parity within nonquantitative treatment limitations?...................................

Nonquantitative treatment limitations (NQTLs) include:

Medical management standards limiting or excluding benefits based on 

medical necessity or medical appropriateness, or based on whether the 

treatment is experimental or investigative;

Formulary design for prescription drugs;

For plans with multiple network tiers (such as preferred providers and 

participating providers), network tier design;

Standards for provider admission to participate in a network, including 

reimbursement rates;

Plan methods for determining usual, customary, and reasonable charges;

Refusal to pay for higher-cost therapies until it can be shown that a 

lower-cost therapy is not effective (also known as fail-first policies or 

step therapy protocols); 

Exclusions based on failure to complete a course of treatment; and

Restrictions based on geographic location, facility type, provider 

specialty, and other criteria that limit the scope or duration of benefits for 

services provided under the plan or coverage.

This is an illustrative, nonexhaustive list. See 29 CFR 2590.712(c)(4)(ii).

General rules:

A plan may not impose an NQTL with respect to mental health/substance 

use disorder benefits in any classification (such as inpatient, out-ofnetwork) unless, under the terms of the plan (as written and in operation), 

any processes, strategies, evidentiary standards, or other factors used in 

applying the NQTL to mental health/substance use disorder benefits in the 

classification are comparable to and applied no more stringently than the 

processes, strategies, evidentiary standards or other factors used in applying 

the NQTL with respect to medical/surgical benefits in the classification. See 

29 CFR 2590.712(c)(4)(i).

A group health plan may consider a wide array of factors in designing 

medical management techniques for both mental health/substance use 

disorder benefits and medical/surgical benefits, such as cost of treatment; 

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high cost growth; variability in cost and quality; elasticity of demand; 

provider discretion in determining diagnosis, or type or length of treatment; 

clinical efficacy of any proposed treatment or service; licensing and 

accreditation of providers; and claim types with a high percentage of fraud. 

Based on application of these or other factors in a comparable fashion, an 

NQTL, such as prior authorization, may be required for some (but not all) 

mental health/substance use disorder benefits, as well as for some medical/ 

surgical benefits, but not for others. See 29 CFR 2590.712(c)(4), Example 8.

Examples: The Departments have published several examples that help illustrate 

how the MHPAEA regulations apply to some common plan NQTLs, including:

1) The penalty for failure to obtain preauthorization is more punitive with 

respect to mental health/substance use disorder benefits than with respect 

to medical/surgical benefits. See 2590.712(c)(4)(iii), Example 3.

2) The plan uses an employee assistance program as a gatekeeper to 

obtaining mental health or substance use disorder benefits. See 

2590.712(c)(4)(iii), Example 6.

3) Utilization management practices that differ among different plan 

benefits. See 29 CFR 2590.712(c)(4)(iii), Example 8.

Tips: Do not focus on results. Look at the underlying processes and 

strategies used in applying NQTLs (such as utilization review (UR) and 

standards for network admission). Are there arbitrary or discriminatory 

differences in how the plan is applying those processes and strategies to medical/

surgical benefits versus mental health/substance use disorder benefits? 

A plan or issuer that limits eligibility for mental health and substance use disorder 

benefits until after benefits under an EAP are exhausted has established an 

NQTL subject to the parity requirements. If no comparable requirement applies 

to medical/surgical benefits such a requirement could not be applied to mental 

health or substance use disorder benefits.

Questions You Might Ask:

1) What classification of benefits is being analyzed? Does the plan clearly 

define which benefits are treated as medical/surgical and which benefits 

are treated as mental health/substance use disorder under the plan. Are 

benefits (such as non-hospital inpatient and partial hospitalization) 

assigned to classifications using a comparable methodology across 

medical/surgical benefits and mental health/substance use disorder 

benefits?

2) What is the type and description of any NQTL being applied and is it 

applied in parity?

3) Overall explanation of how each NQTL is applied with respect to 

medical/surgical benefits and mental health and substance use disorder 

benefits. (Note: this includes requirements that both the participant 

and provider may be subject to pursuant to the NQTL). If only certain 

benefits are subject to an NQTL, such as meeting a fail first protocol or 

requiring preauthorization, how were the specific medical/surgical and 

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YES NO N/A

mental health or substance use disorder benefits subject to the NQTL

determined? To the extent medical guidelines are relied upon, is there 

a process for determining variation/application of the guidelines that is 

comparable with respect to both medical/surgical and mental health or 

substance use disorder benefits? 

4) Even if benefits are subject to the same NQTL, does the plan impose 

stricter penalties for noncompliance with respect to mental health and 

substance use disorder benefits (for example, reducing benefits to 50% 

of eligible expenses for failure to obtain prior authorization for mental 

health and substance use disorder benefits, vs. 20% for medical/surgical 

benefits)? 

5) If utilization review is conducted by different entities/individuals 

for medical/surgical and mental health or substance use disorder 

benefits provided under the plan, what processes are in place to ensure 

comparability in the standards used for UR and comparability in the 

independence and qualifications of the individuals performing UR?

6) Has the plan documented its analysis that its NQTL processes and 

strategies (such as UR) are comparable across medical/surgical and 

mental health/substance use disorder benefits?

Tip: Plans should keep records documenting NQTL processes and how they are 

being applied to both medical/surgical as well as mental health and substance use 

disorder benefits to ensure they can demonstrate compliance with the law. Such 

records may also be helpful to plans in responding to inquiries from participants 

and beneficiaries regarding benefits under the plan. See a more detailed 

discussion of disclosure requirements in the following section.

Illustrations. Set forth below are additional illustrations of how a plan may have 

differences in nonquantitative treatment limitations:

NQTLs but may still comply with the Departments’ regulations, based on the 

facts and circumstances involved:

Plan X covers neuropsychological testing but only for certain conditions.

In such situations, look to see whether the exclusion is based on evidence 

addressing for example, clinical efficacy of such testing for different 

conditions and the degree to which such testing is used for educational 

purposes with regard to different conditions. Does the plan rely on 

criteria and evidence from comparable sources with respect to medical/

surgical and mental health conditions? Does the plan have documentation 

indicating the criteria used and evidence supporting the plan’s determination 

of the diagnoses for which they will cover this service and the rationale 

for excluding certain diagnoses? The result may be that the plan covers 

neuropsychological testing for some medical/surgical or mental health 

conditions, but not for all. This outcome may be permissible to the extent the 

plan has based the exclusion on clinical efficacy and/or other factors if done 

in a comparable manner and applies the NQTL in a comparable manner.

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Plan Y uses diagnosis related group (DRG) codes in their standard utilization 

review process to actively manage hospitalization utilization. For all 

non-DRG hospitalizations (whether due to an underlying medical/surgical 

condition or a mental health or substance use disorder condition), the plan 

requires precertification for hospital admission and incremental concurrent 

review. The precertification and concurrent review processes review unique 

clinical presentation, condition severity, expected course of recovery, 

quality and efficiency. The evidentiary standards and other factors used in 

the development of the concurrent review process are comparable across 

medical/surgical benefits and mental health/substance use disorder benefits, 

and are well documented. These evidentiary standards and other factors are 

available to participants and beneficiaries free of charge upon request. In this 

example, it appears that, under the terms of the plan as written and in practice, 

the processes, strategies, evidentiary standards, and other factors considered 

by the plan in implementing its precertification and concurrent review of 

hospitalizations is comparable and applied no more stringently with respect 

to mental health and substance use disorder benefits than those applied with 

respect to medical/surgical benefits.

Plan Z classifies care in skilled nursing facilities or rehabilitation hospitals as 

inpatient benefits and likewise treats any covered care in residential treatment 

facilities for mental health or substance use disorders as an inpatient benefit. 

In addition, the plan treats home health care as an outpatient benefit and, 

likewise treats intensive outpatient and partial hospitalization for mental health 

or substance use disorder services as outpatient benefits. In this example, the 

plan assigns covered intermediate mental health and substance use disorder 

benefits to the six classifications in the same way that it assigns comparable 

intermediate medical/surgical benefits.

Master’s degree training and state licensing requirements often vary among 

provider types. Plan Z consistently applies its standard that any provider must 

meet whatever is the most stringent licensing requirement standard related 

to supervised clinical experience requirements in order to participate in the 

network. Therefore, Plan Z requires master’s-level therapists to have postdegree, supervised clinical experience in order to join their provider network. 

There is no parallel requirement for master’s-level general medical providers 

because their licensing does require supervised clinical experience. In addition, 

the plan does not require post-degree, supervised clinical experience for 

psychiatrists or PhD level psychologists since their licensing already requires 

supervised training. The requirement that master’s-level therapists must have 

supervised clinical experience to join the network is permissible, as the plan 

consistently applies the same standard to all providers even though it may have 

a disparate impact on certain mental health providers.

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YES NO N/A

SECTION F. Disclosure Requirements

Question 28 – Does the plan comply with the mental health parity disclosure 

requirements? .........................................................................................................

The plan administrator (or the health insurance issuer) must make available 

the criteria for medical necessity determinations made under a group health 

plan with respect to mental health/substance use disorder benefits (or health 

insurance coverage offered in connection with the plan with respect to such 

benefits) to any current or potential participant, beneficiary, or contracting 

provider upon request. See 29 CFR 2590.712(d)(1).

The plan administrator (or health insurance issuer) must make available 

the reason for any denial under a group health plan (or health insurance 

coverage) of reimbursement or payment for services with respect to mental 

health/substance use disorder benefits to any participant or beneficiary in a 

form and manner consistent with the rules in 29 CFR 2560.503-1 (the DOL

claims procedure rule) and 29 CFR 2590.715-2719. (internal claims and 

appeals and external review processes).

Pursuant to the internal claims and appeals and external review rules under 

the Affordable Care Act, applicable to all non-grandfathered group health 

plans, claims related to medical judgment (including mental health/substance 

use disorder) are eligible for external review. The internal claims and appeals 

rules include the right of claimants (or their authorized representative) to be 

provided upon request and free of charge, reasonable access to and copies of 

all documents, records, and other information relevant to the claimant’s claim 

for benefits. This includes documents with information about the processes, 

strategies, evidentiary standards, and other factors used to apply an NQTL 

with respect to medical/surgical benefits and mental health/substance use 

disorder benefits under the plan. See 29 CFR 2590.712(d)(3).

If coverage is denied based on medical necessity, medical necessity criteria 

for the mental health/substance use disorder benefits at issue and for medical/ 

surgical benefits in the same classification must be provided within 30 days 

of the request to the participant, beneficiary, or provider or other individual if 

acting as an authorized representative of the beneficiary or participant. See 

29 CFR 2520.104b-1; 29 CFR 2590.712(d)(1).

Make Showing Compliance Simple! 

Documents or Plan Instruments Participants and Beneficiaries or DOL may 

request:

Participants and beneficiaries may request documents and plan instruments 

regarding whether the plan is providing benefits in accordance with MHPAEA 

and copies must be furnished within 30 days of request. This may include 

documentation that illustrates how the health plan has determined that any 

financial requirement, quantitative treatment limitation, or nonquantitative 

treatment limitation is in compliance with MHPAEA. For example, participants 

and beneficiaries may ask for:

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An analysis showing that the plan meets the predominant/substantially 

all test. The plan may need to provide information regarding the amount 

of medical/surgical claims subject to a certain type of QTL, such as a copayment, in the prior year in a classification or its basis for calculating claims 

expected to be subject to a certain type of QTL in the current plan year in a 

classification, for purposes of determining the plan’s compliance with the 

predominant/substantially all test.

A description of an applicable requirement or limitation, such as 

preauthorization or concurrent review, that the plan has authorized for mental 

health/substance use disorder services and medical/surgical benefits within 

the relevant classification (in- or out-of-network, in- or outpatient). These 

might include references to specific plan documents, for example provisions 

as stated on specified pages of the SPD, or other underlying guidelines or 

criteria not included in the SPD that the Plan has consulted or relied upon;

Information regarding factors, such as cost or recommended standards of 

care, that are relied upon by a plan for determining which medical/surgical 

or mental health or substance use disorder benefits are subject to a specific 

requirement or limitation. These might include references to specific related 

factors or guidelines, such as applicable utilization review criteria;

A description of the applicable requirement or limitation that the plan 

believes have been used in any given mental health/substance use 

disorder service adverse benefit determination (ABD) within the relevant 

classification; 

Medical necessity guidelines relied upon for in and out-of-network medical/

surgical and mental health and substance use disorder benefits. 

Tips: 

Participants, beneficiaries and contracting providers may request information to 

determine whether benefits under a plan are being provided in parity even in the 

absence of any specific adverse benefit determination.

Plans may need to work with insurance carriers providing coverage on behalf 

of an insured group health plan or with third party administrators administering 

the plan to ensure that such service providers either directly or in coordination 

with the plan are providing participants and beneficiaries any documents or 

information to which they are entitled.

If a plan uses mental health and substance use disorder vendors and carveout service providers, the plan must ensure that all combinations of benefits 

comport with parity, therefore vendors and carve out providers should provide 

documentation of the necessary information to the Plan to ensure that all 

combination of benefits comport with parity.

Note: Compliance with the disclosure requirements of MHPAEA is not 

determinative of compliance with any other provision or other applicable Federal 

or State law. Be sure that the Plan, in addition to these disclosure requirements, is 

disclosing information relevant to medical/surgical, mental health, and substance 

use disorder benefits as required pursuant to other applicable provisions of law. 

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III. Determining Compliance with the Newborns’ Act Provisions in Part 7 of ERISA

If you answer “No” to any of the questions below, the group health plan is 

in violation of the Newborns’ Act provisions in Part 7 of ERISA.

SECTION A – Newborns’ Act Substantive Provisions

The substantive provisions of the Newborns’ Act apply only to certain plans, as 

follows:

If the plan does not provide benefits for hospital stays in connection with 

childbirth, check “N/A” and go to Part IV of this self-compliance tool. (Note: 

Under the Pregnancy Discrimination Act, most plans are required to cover 

maternity benefits.)

Special applicability rule for insured coverage that provides benefits for hospital 

stays in connection with childbirth:

If the plan provides benefits for hospital stays in connection with childbirth, the 

plan is insured, and the coverage is in Wisconsin and several U.S. territories, it 

appears that the Federal Newborns’ Act applies to the plan. If this is the case, 

answer the questions in SECTION A and SECTION B. If the plan provides 

benefits for hospital stays in connection with childbirth and is insured, whether 

the plan is subject to the Newborns’ Act depends on State law. Based on a 

recent preliminary review of State laws, if the coverage is in any other state or 

the District of Columbia, it appears that State law applies in lieu of the Federal 

Newborns’ Act. If this is the case, check “N/A” and skip to SECTION B.

Self-insured coverage that provides benefits for hospital stays in connection 

with childbirth: If the plan provides benefits for hospital stays in connection with 

childbirth and is self-insured, the Federal Newborns’ Act applies. Answer the 

questions in SECTION A and SECTION B.

Question 29 – General 48/96-hour stay rule

Does the plan comply with the general 48/96-hour rule? .........................................

Plans generally may not restrict benefits for a hospital length of stay in 

connection with childbirth to less than 48 hours in the case of a vaginal delivery 

(See ERISA section 711(a)(1)(A)(i)), or less than 96 hours in the case of a 

cesarean section (See ERISA section 711(a)(1)(A)(ii)).

Therefore, a plan cannot deny a mother or her newborn benefits within a 48/96- 

hour stay based on medical necessity. (A plan may require a mother to notify the 

plan of a pregnancy to obtain more favorable cost-sharing for the hospital stay. 

This second type of plan provision is permissible under the Newborns’ Act if the 

cost-sharing is consistent throughout the 48/96-hour stay.)

YES NO N/A

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An attending provider may, however, decide, in consultation with the mother, 

to discharge the mother or newborn earlier.

Question 30 – Provider must not be required to obtain authorization 

from plan

Plans may not require providers to obtain authorization from the plan to 

prescribe a 48/96-hour stay. Does the plan comply with this rule?.....................

Plans may not require that a provider (such as a doctor) obtain authorization 

from the plan to prescribe a 48/96-hour stay. See ERISA section 711(a)(1)(B);

29 CFR 2590.711(a)(4).

Tips: Watch for plan preauthorization requirements that are too broad. For 

example, a plan may have a provision requiring preauthorization for all hospital 

stays. Providers cannot be required to obtain preauthorization from the plan 

in order for the plan to cover a 48-hour (or 96-hour) stay in connection with 

childbirth. Therefore, in this example, the plan must add clarifying language to 

indicate that the general preauthorization requirement does not apply to 48/96-

hour hospital stays in connection with childbirth. (Conversely, plans generally 

may require participants or beneficiaries to give notice of a pregnancy or hospital 

admission in connection with childbirth in order to obtain, for example, more 

favorable cost-sharing.) Nonetheless, the Newborns’ Act does not prevent plans 

and issuers from requiring providers to obtain authorization for any portion of a 

hospital stay that exceeds 48 (or 96) hours.

Question 31 – Incentives/penalties to mothers or providers

Does the plan comply with the Newborns’ Act by avoiding impermissible 

incentives or penalties with respect to mothers or attending providers?.............

Penalties to attending providers to discourage 48/96-hour stays violate ERISA

section 711(b)(3) and 29 CFR 2590.711(b)(3)(i).

Incentives to attending providers to encourage early discharges violate ERISA

section 711(b)(4) and 29 CFR 2590.711(b)(3)(ii).

Penalties imposed on mothers to discourage 48/96-hour stays violate ERISA

section 711(b)(1) and 29 CFR 2590.711(b)(1)(i)(A).

Incentives to mothers to encourage early discharges violate ERISA section

711(b)(2) and 29 CFR 2590.711(b)(1)(i)(B).

An example of this would be if the plan waived the mother’s copayment 

or deductible if the mother or newborn leaves within 24 hours.

Benefits and cost-sharing may not be less favorable for the latter portion of 

any 48/96-hour hospital stay. In this case less favorable benefits would violate 

ERISA section 711(b)(5) and 29 CFR 2590.711(b)(2) and less favorable costsharing would violate ERISA section 711(c)(3) and 29 CFR 2590.711(c)(3).

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YES NO N/A

SECTION B – Disclosure Provisions

Group health plans that provide benefits for hospital stays in connection with 

childbirth are required to make certain disclosures, as follows:

Question 32 – Disclosure with respect to hospital lengths of stay in 

connection with childbirth

Does the plan comply with the notice provisions relating to hospital stays in 

connection with childbirth?....................................................................................

Group health plans that provide benefits for hospital stays in connection with 

childbirth are required to make certain disclosures. Specifically, the group 

health plan’s SPD must include a statement describing any requirements 

under Federal or State law applicable to the plan, and any health insurance 

coverage offered under the plan, relating to hospital length of stay in 

connection with childbirth for the mother or newborn child. See the SPD 

content regulations at 29 CFR 2520.102-3(u).

Tip: Whether the plan is insured or self-insured, and whether the Federal Newborns’ Act provisions or State law provisions apply to the coverage, the plan 

must provide a notice describing any requirements relating to hospital length 

of stays in connection with childbirth. A model notice is provided in the Model 

Disclosures on page 140.

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IV. Determining Compliance with the WHCRA Provisions in Part 7 of ERISA

If you answer “No” to any of the questions below, the group health plan is 

in violation of the WHCRA provisions in Part 7 of ERISA.

WHCRA applies only to plans that offer benefits with respect to a mastectomy. If 

the plan does not offer these benefits, check “N/A” and go to Part V of this selfcompliance tool..............................................................................................................

If the plan does offer benefits with respect to a mastectomy, answer 

Questions 33-36.

Question 33 – Four required coverages under WHCRA

Does the plan provide the four coverages required by WHCRA? .........................

In the case of a participant or beneficiary who is receiving benefits in connection 

with a mastectomy, the plan shall provide coverage for the following benefits for 

individuals who elect them:

All stages of reconstruction of the breast on which the mastectomy has been

performed;

Surgery and reconstruction of the other breast to produce a symmetrical 

appearance;

Prostheses; and

Treatment of physical complications of mastectomy, including lymphedema, 

in a manner determined in consultation with the attending provider and the 

patient. See ERISA section 713(a).

These required coverages can be subject to annual deductibles and coinsurance 

provisions if consistent with those established for other medical/surgical benefits 

under the plan or coverage.

Tip: Plans that cover benefits for mastectomies cannot categorically exclude 

benefits for reconstructive surgery or certain post-mastectomy services. In addition, 

time limits for seeking treatment may run afoul of the general requirement to provide 

the four required coverages.

Question 34 – Incentive provisions

Does the plan comply with WHCRA by not providing impermissible incentives 

or penalties with respect to patients or attending providers? .................................

A plan may not deny a patient eligibility to enroll or renew coverage solely to 

avoid WHCRA’s requirements under ERISA section 713(c)(1).

In addition, under ERISA section 713(c)(2), a plan may not penalize or offer 

incentives to an attending provider to induce the provider to furnish care in a 

manner inconsistent with WHCRA.

YES NO N/A

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Question 35 – Enrollment notice

Does the plan provide adequate and timely enrollment notices as required by 

WHCRA? ...............................................................................................................

Upon enrollment, a plan must provide a notice describing the benefits 

required under WHCRA. See ERISA section 713(a).

The enrollment notice must describe the benefits that WHCRA requires the 

group health plan to cover, specifically:

All stages of reconstruction of the breast on which the mastectomy was

performed,

Surgery and reconstruction of the other breast to produce a symmetrical 

appearance,

Prostheses, and

Physical complications resulting from mastectomy (including lymphedema).

The enrollment notice must describe any deductibles and coinsurance 

limitations applicable to such coverage. (Note: Under WHCRA, coverage 

of the required benefits may be subject only to deductibles and coinsurance 

limitations consistent with those established for other medical/surgical 

benefits under the plan or coverage.)

Tip: A model notice is provided in the Model Disclosures on page 141.

Question 36 – Annual notice

Does the plan provide adequate and timely annual notices as required by

WHCRA? ...............................................................................................................

Plans must provide notices describing the benefits required under WHCRA 

once each year. See ERISA section 713(a).

To satisfy this requirement, the plan may redistribute the WHCRA enrollment 

notice or the plan may use a simplified disclosure that:

Provides notice of the availability of benefits under the plan for 

reconstructive surgery, surgery to achieve symmetry between the breasts, 

prostheses, and physical complications resulting from mastectomy 

(including lymphedema); and

Contact information (e.g., telephone number) for obtaining a detailed

description of WHCRA benefits available under the plan.

Tip: The WHCRA annual notice can be provided in the SPD if the plan 

distributes SPDs annually. If not, the plan should break off the annual notice into 

a separate disclosure. A model notice is provided in the Model Disclosures on 

page 142.

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V. Determining Compliance with the GINA Provisions in Part 7 of ERISA

If you answer “No” to any of the questions below, the group health plan is 

in violation of the GINA provisions in Part 7 of ERISA.

Unlike HIPAA, the GINA provisions generally do apply to very small health plans 

(plans with less than two participants who are current employees), including retireeonly health plans.

Definitions (for all defined terms under GINA, see 29 CFR 2590.702-1(a)):

Genetic information means, with respect to an individual, information about the 

individual’s genetic tests, the genetic tests of family members of the individual, the 

manifestation (see definition below) of a disease or disorder in family members of 

the individual or any request for or receipt of genetic services or participation in 

clinical research which includes genetic services by the individual or any family 

member of the individual.

Genetic information includes, with respect to a pregnant woman or family 

member of the pregnant woman, genetic information of any fetus carried by the 

pregnant woman.

Genetic information includes, with respect to an individual who is utilizing an

assisted reproductive technology, genetic information of any embryo legally held 

by the individual or family member.

Genetic information does NOT include information about the sex or age of any

individual.

Family member means, with respect to an individual, a dependent of the individual 

or any person who is a first-degree, second-degree, third-degree, or fourth-degree 

relative of the individual or a dependent of the individual. Relatives of affinity 

(such as by marriage or adoption) are treated the same as relatives by consanguinity 

(that is, relatives who share a common biological ancestor). Relatives by less than 

full consanguinity (such as half-siblings, who share only one parent) are treated 

the same as relatives by full consanguinity (such as siblings who share both 

parents). Therefore, family members include parents, spouses, siblings, children, 

grandparents, grandchildren, aunts, uncles, nephews, nieces, great-grandparents, 

great-grandchildren, great aunts, great uncles, first cousins, great-great grandparents, 

great-great grandchildren, and children of first cousins.

Manifestation means, with respect to a disease, disorder, or pathological condition, 

that an individual has been or could reasonably be diagnosed with the disease, 

disorder, or pathological condition by a health care professional with appropriate 

training and expertise in the field of medicine involved. A disease, disorder, or 

pathological condition is not manifested if a diagnosis is based principally on genetic 

information.

YES NO N/A

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Genetic services means a genetic test, genetic counseling (including obtaining, 

interpreting, or assessing genetic information) or genetic education.

Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, 

or metabolites, if the analysis detects genotypes, mutations, or chromosomal 

changes.

A genetic test does NOT include an analysis of proteins or metabolites that is 

directly related to a manifested disease, disorder, or pathological condition. For 

example, a test to determine whether an individual has a BRCA1 or BRCA2, 

genetic variants associated with a significantly increased risk for breast cancer, is 

a genetic test. An HIV test, complete blood count, cholesterol test, liver function 

test, or test for the presence of alcohol or drugs is not a genetic test.

Question 37 – Does the plan comply with GINA’s prohibition against groupbased discrimination based on genetic information? .........................................

A group health plan cannot adjust premium or contribution amounts for the

plan, or any similarly situated individuals under the plan, on the basis of 

genetic information. See 29 CFR 2590.702-1(b)(1).

Nothing limits a plan from increasing the premium for the group health plan 

or for a group of similarly situated individuals under the plan based on the 

manifestation of a disease or disorder of an individual enrolled in the plan. 

However, the manifestation of the disease in one individual cannot be used 

as genetic information about other group members to further increase the 

premium for a group health plan or a group of similarly situated individuals 

under the plan. See 29 CFR 2590.702-1(b)(2).

Question 38 – Does the plan comply with GINA’s limitation on 

requesting or requiring genetic testing? ..............................................................

A group health plan generally must not request or require an individual 

or family member of the individual to undergo a genetic test. See 29 CFR 

2590.702-1(c)(1).

Exceptions:

A health care professional who is providing health care services to an 

individual can request that the individual undergo a genetic test. See 29 

CFR 2590.702-1(c)(2).

A plan can obtain and use the results of a genetic test for making a 

determination regarding payment. However, the plan is permitted to 

request only the minimum amount of information necessary to make the 

determination. See 29 CFR 2590.702-1(c)(4).

Exception for research: a plan or issuer may request, but not require, 

that a participant or beneficiary undergo a genetic test if the request 

is pursuant to research and several conditions are met. See 29 CFR 

2590.702-1(c)(5).

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Question 39 – Does the plan comply with GINA’s prohibition on collection of 

genetic information, prior to or in connection with enrollment?........................

A plan cannot collect genetic information prior to an individual’s effective 

date of coverage under that plan or coverage, nor in connection with the rules 

for eligibility that apply to that individual. See 29 CFR 2590.702-1(d)(2)(i).

Whether or not an individual’s information is collected prior to that 

individual’s effective date of coverage is determined at the time of collection.

Exception for incidental collection:

If a plan obtains genetic information incidental to the collection of other 

information concerning any individual, the collection is not a violation, 

as long as the collection is not for underwriting purposes. See 29 CFR

2590.702-1(d)(2)(ii)(A).

However, the incidental collection exception does not apply in 

connection with any collection where it is reasonable to anticipate that 

health information would be received, unless the collection explicitly 

states that genetic information should not be provided. See 29 CFR 

2590.702-1(d)(2)(ii)(B).

Question 40 – Does the plan comply with GINA’s prohibition on 

collection of genetic information, for underwriting purposes? ............................

A plan cannot request, require, or purchase (“collect”) genetic information 

for underwriting purposes. See 29 CFR 2590.702-1(d)(1)(i).

Underwriting purposes means, with respect to any group health plan:

Rules for determination of eligibility (including enrollment and 

continued eligibility) for benefits under the plan or coverage (including 

changes in deductibles or other cost-sharing mechanisms in return for 

activities such as completing a health risk assessment or participating in 

a wellness program);

The computation of premium or contribution amounts under the 

plan or coverage (including discounts, rebates, payments in kind, or 

other premium differential mechanisms in return for activities such 

as completing a health risk assessment or participating in a wellness 

program);

The application of any preexisting condition exclusion under the plan or 

coverage; and

Other activities related to the creation, renewal, or replacement of a 

contract of health insurance or health benefits. See 29 CFR 2590.702-

1(d)(1)(ii).

Exception for medical appropriateness (only if an individual seeks a benefit

under the plan):

If an individual seeks a benefit under a plan, the plan may limit or 

exclude the benefit based on whether the benefit is medically appropriate 

and the determination of whether the benefit is medically appropriate is 

not for underwriting purposes.

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If a plan conditions a benefit on medical appropriateness, and medical 

appropriateness depends on the genetic information of an individual, the 

plan can condition the benefit on genetic information. A plan or issuer

is permitted to request only the minimum amount of genetic information 

necessary to determine medical appropriateness. See 29 CFR 2590.702-

1(d) (1)(iii) and (e).

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If you answered “Yes” to ALL of the above questions, there does not appear to be a violation of the GINA 

regulations.
VI. Compliance with Michelle’s Law

If you answer “No” to any of the questions below, the group health plan is 

in violation of the Michelle’s Law provisions in Part 7 of ERISA.

**Note: Under the Affordable Care Act group health plans and issuers are 

generally required to provide dependent coverage to age 26 regardless of 

student status of the dependent. Nonetheless, under some circumstances, such 

as a plan that provides dependent coverage beyond age 26, Michelle’s Law 

provisions may apply.

Question 41 – Does the plan comply with the Michelle’s Law requirement not 

to terminate coverage of dependent students on medically necessary leave of 

absence? ........................................................................................................................

Medically necessary leave of absence means with respect to a dependent child 

in connection with a group health plan or health insurance coverage offered in 

connection with a group health plan, a leave of absence from or other change in 

enrollment status in a postsecondary educational institution that begins while the 

child is suffering from a serious illness or injury; is medically necessary; and causes 

the child to lose student status for purposes of coverage under the terms of the plan 

or coverage.

A dependent child is a beneficiary who is a dependent child under the terms of 

the plan or coverage, of a participant or beneficiary under the plan or coverage 

and who was enrolled in the plan or coverage on the basis of being a student at 

a postsecondary educational institution immediately before the first day of the 

medically necessary leave of absence involved.

A group health plan or issuer shall not terminate coverage of a dependent child 

due to a medically necessary leave of absence that causes the child to lose 

student status before the date that is the earlier of:

the date that is one year after the first day of the medically necessary leave 

of absence; or

the date on which such coverage would otherwise terminate under the terms 

of the plan or health insurance coverage. See ERISA section 714(b).

Tip: The group health plan or issuer can require receipt of written certification by a 

treating physician of the dependent child which states that the dependent child

is suffering from a serious illness or injury and that the leave of absence (or other 

change of enrollment) is medically necessary.

YES NO N/A

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YES NO N/A

Question 42 – Does the plan comply with Michelle’s Law’s notice 

requirement? ..........................................................................................................

A group health plan or issuer must include with any notice regarding a 

requirement for certification of student status for coverage, a description 

of the Michelle’s law provision for continued coverage during medically 

necessary leaves of absence. See ERISA section 714(c).

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VII. Determining Compliance with the Affordable Care Act Provisions in Part 7 of ERISA

The Affordable Care Act was signed into law by the President on March 23, 2010. Amendments to the 

Affordable Care Act made through the Health Care Education and Reconciliation Act (Reconciliation 

Act) were signed into law on March 30, 2010. Generally, the Affordable Care Act’s market reform 

provisions amend title XXVII of the Public Health Service Act (PHS Act), which is administered 

by the Department of Health and Human Services. The Affordable Care Act also creates section 

715 of the Employee Retirement Income Security Act (ERISA), administered by the Department of 

Labor, Employee Benefits Security Administration, and section 9815 of the Internal Revenue Code, 

administered by the Department of Treasury (the Treasury) and the Internal Revenue Service (IRS), 

to incorporate the market reform provisions of the PHS Act into ERISA and the Code, and make them 

applicable to group health plans and health insurance issuers providing group health insurance 

coverage. Under section 1251 of the Affordable Care Act, grandfathered health plans are required to 

comply with some, but not all, of the market reform provisions. In addition, these provisions do not 

apply to retiree-only or excepted benefits plans (See ERISA Section 732). The Departments of Labor, 

HHS, and the Treasury have been issuing guidance on an ongoing basis since May 2010.

Note, that the Affordable Care Act, PHSA Section 2705 included requirements relating to wellness 

programs. The Departments issued final regulations June 6, 2013 at 29 CFR 2590.702 and 29 CFR 

2590.715-2705 using joint authority under HIPAA and the ACA. These requirements relating to 

wellness programs are discussed in the HIPAA section of this tool at I (C).

See EBSA’s Website: dol.gov/ebsa/healthreform/ for the most up-to-date guidance.

This compliance aid will be updated in the future to further address additional requirements as they 

become applicable, as enforcement grace periods expire, or as the Departments issue additional 

guidance.

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YES NO N/A

Section A. Determining Grandfather Status Under the Affordable Care Act 

Provisions in Part 7 of ERISA

Note: The grandfathered status of a plan will affect whether a plan must comply 

with certain provisions of the Affordable Care Act (ACA). There are also special 

rules for collectively bargained plans. See also the rules at 29 CFR 2590.715-

1251(f).

Grandfathered status is intended to allow people to keep their coverage as it 

existed on March 23, 2010, while giving plans some flexibility to make “normal” 

changes while retaining grandfathered status. Restrictions and requirements 

on grandfathered health plan coverage provides individuals’ protection from 

significant reductions in coverage, provides for coverage to include numerous 

protections implemented through the Affordable Care Act, and allows employers 

the flexibility to manage costs.

The analysis for determining grandfathered status applies separately to each 

benefit package or option. Accordingly, grandfathered status might be retained 

for some benefit packages or options and relinquished for others. By contrast, if 

an employer relinquished grandfathered status for self-only, family, or any other 

tier within a benefits package, it would relinquish grandfathered status for the 

entire package. See 29 CFR 2590.715-1251(a)(1)(i).

If the plan is not claiming grandfathered status, proceed to Section B.

If the answer is “yes” to questions 43 and 44 below the group health plan 

may be a grandfathered health plan.

Question 43 – Did the plan exist with at least one individual enrolled on 

March 23, 2010?......................................................................................................

A grandfathered group health plan must have been in existence with an 

enrolled individual on March 23, 2010. Any plan that does not meet this 

requirement is not in grandfathered status. See 29 CFR 2590.715-1251(a)(1)

(i).

Question 44 – Has the plan continuously covered someone (not necessarily 

the same person) since March 23, 2010? ..............................................................

A group health plan will not relinquish its grandfathered status merely 

because one or more (or all) individuals enrolled on March 23, 2010, cease to 

be covered. However, a grandfathered health plan must continuously cover 

someone (not necessarily the same person) since March 23, 2010, to maintain 

its status. See 29 CFR 2590.715-1251(a)(1)(i).

If the answers to questions 43 and 44 were “yes”, complete questions 45-

53. If the answer is “no” to either question 43 or 44, the group health plan 

cannot claim grandfathered status; proceed to Section B.

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YES NO N/A

Tip: Provided changes are made without exceeding the other standards that 

cause a plan to relinquish grandfathered status, changes that generally will not 

cause plans to relinquish grandfathered status include changes to: premiums; 

to comply with Federal or State legal requirements; to voluntarily comply with 

provisions of the Affordable Care Act; third party administrators; network plan’s 

provider network; and to a prescription drug formulary.

Question 45 – Has the plan eliminated all or substantially all benefits to 

diagnose or treat a particular condition? .............................................................

For the purpose of determining grandfathered status, the elimination of 

benefits for any necessary element to diagnose or treat a condition is 

considered the elimination of all or substantially all benefits to diagnose or 

treat a particular condition. See 29 CFR 2590.715-1251(g)(1)(i).

Question 46 – Has the plan increased a percentage cost-sharing requirement 

(such as an individual’s coinsurance)? .................................................................

Any increase measured from March 23, 2010, in a percentage cost-sharing 

requirement causes a plan to relinquish grandfathered status. See 29 CFR 

2590.715-1251(g)(1)(ii).

Question 47 – Has the plan increased a fixed-amount cost-sharing 

requirement other than a copayment (such as a deductible or out-of-pocket 

limit) such that the total percentage increase measured from March 23, 2010 

exceeds the maximum percentage increase? .......................................................

The maximum percentage increase is medical inflation, expressed as a 

percentage, plus 15 percentage points. See 29 CFR 2590.715-1251(g)(3)(ii). 

Medical inflation is the increase since March 2010, in the overall medical 

care component of the Consumer Price Index for All Urban Consumers 

(CPI-U) (unadjusted) published by the Department of Labor using the 1982-

1984 base of 100. See 29 CFR 2590.715-1251(g)(3)(i).

Question 48 – Has the plan increased a fixed-amount copayment such 

that the increase measured from March 23, 2010 exceeds the greater of: 

the maximum percentage increase, or an amount equal to $5 plus medical 

inflation? .................................................................................................................

The maximum percentage increase is medical inflation, expressed as a 

percentage, plus 15 percentage points. See 29 CFR 2590.715-1251(g)(3)(ii). 

Medical inflation is the increase since March 2010 in the overall medical care 

component of the Consumer Price Index for All Urban Consumers (CPI-U) 

(unadjusted) published by the Department of Labor using the 1982-1984 base 

of 100. See 29 CFR 2590.715-1251(g)(3)(i).

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Question 49 – Has there been a decrease in the contribution rate by the 

employer (or employee organization) towards the cost of any tier of coverage 

for any class of similarly situated individuals by more than 5 percentage 

points below the contribution rate for the coverage period that includes 

March 23, 2010? .....................................................................................................

If the contribution rate is based on a formula, was there a decrease in the 

contribution rate by more than 5 percentage points below the contribution 

rate for the coverage period that includes March 23, 2010? See 29 CFR 

2590.715-1251(g)(1)(v)(B).

Tip: If a group health plan modifies the tiers of coverage it had on March 23, 

2010 (for example, from self-only and family to a multi-tiered structure of selfonly, self-plus-one, self-plus-two, and self-plus-three-or-more), the employer 

contribution for any new tier would be tested by comparison to the contribution 

rate for the corresponding tier on March 23, 2010. If the plan adds one or more 

new coverage tiers without eliminating or modifying any previous tiers and those 

new coverage tiers cover classes of individuals that were not covered previously 

under the plan, the new tiers would not be analyzed under the standards of 

paragraph (g)(1). See DOL FAQs About the Affordable Care Act Implementation 

Part II, question 3 at dol.gov/ebsa/faqs/faq-aca2.html.

In cases of a multiemployer plan that has either a fixed-dollar employee 

contribution or no employee contribution towards the cost of coverage, if the 

employer’s contribution rate changes, provided any changes in the coverage 

terms would not otherwise cause the plan to cease to be grandfathered and 

there continues to be no employee contribution or no increase in the fixeddollar employee contribution towards the cost of coverage, the change of 

the employer’s contribution rate will not, in and of itself, cause a plan that is 

otherwise a grandfathered health plan to relinquish grandfathered status. See 

DOL FAQs About the Affordable Care Act Implementation Part I, question 4 at 

dol.gov/ebsa/faqs/faq-aca.html.

Question 50 – Has the plan added or decreased an overall annual limit on 

benefits? ..................................................................................................................

A plan will relinquish its grandfathered status if it:

Adds an overall annual limit on the dollar value of all benefits when it 

did not previously impose an overall annual limit (See 29 CFR 2590.715-

1251(g)(1)(vi)(A));

Previously imposed an overall lifetime limit on the dollar value of 

benefits (but no overall annual limit) and adopts an overall annual limit 

at a dollar value that is lower than the dollar value of the lifetime limit on 

March 23, 2010 (See 29 CFR 2590.715-1251(g)(1)(vi)(B)); or

Decreases the dollar value of the overall annual limit that was in place on 

March 23, 2010 (See 29 CFR 2590.715-1251(g)(1)(vi)(C)).

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Note: For plan years beginning on or after January 1, 2014, a plan may not 

establish, for any individual, an annual limit on the dollar amount of benefits that 

are essential health benefits. See 29 CFR 2590.715-2711(b)(1).

If the answer to any of questions 45-50 was “yes”, the plan is NOT a 

grandfathered plan, proceed to Section B.

Question 51 – Did the plan change issuers after March 23, 2010? ....................

If the answer to question 51 is “yes”, if the group health plan changed issuers 

after March 23, 2010, and the change in issuer was effective on or after 

November 15, 2010, the plan will continue to be a grandfathered plan provided 

no other changes that would relinquish grandfathered status are made. See 29 

CFR 2590.715-1251(a)(1)(ii), as amended. Proceed to question 53.

If a group health plan changed issuers after March 23, 2010, and the change 

was effective prior to November 15, 2010, the plan will have relinquished 

grandfather status. The plan is not a grandfathered plan; proceed to Section 

B.

Tip: The operative date is the effective date of the new contract, not the date 

the new contract was entered into. Special rules apply for collectively bargained 

plans. See 29 CFR 2590.715-1251(f) for collectively bargained plans.

Question 52 – Did the plan change from self-insured to fully-insured after 

March 23, 2010? .....................................................................................................

If the group health plan was self-insured and changed to fully insured after March 

23, 2010, and the change was effective on or after November 15, 2010, the plan 

will continue to be a grandfathered plan provided no other changes are made that 

would relinquish grandfathered status. See 29 CFR 2590.715-1251(a)(1)(ii), as 

amended. Proceed to question 53.

If a group health plan was self-insured and changed to fully-insured after 

March 23, 2010, and the change was effective prior to November 15, 2010, 

the plan will have relinquished grandfathered status. The plan is not a 

grandfathered plan; proceed to Section B.

If Questions 51 and 52 are not applicable to the group health plan, continue 

to Question 54 to continue the grandfather status analysis.

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Question 53 – If the group health plan changed issuers (including a plan 

that was self-insured and changed to fully insured) and has maintained 

grandfathered status, did the plan provide documentation to the new issuer 

of the plan terms under the prior health coverage sufficient to determine 

whether any other change was made that would relinquish grandfathered 

status? ......................................................................................................................

To maintain status as a grandfathered health plan, the plan must provide to 

the new issuer (and the new issuer must require) documentation of plan terms 

(including benefits, cost sharing, employer contributions, and annual limits) 

under the prior health coverage sufficient to determine whether any other 

change is being made that would relinquish grandfathered status. See 29 

CFR 2590.715-1251(a)(3)(ii), as amended.

Question 54 – Does the plan include a statement that it believes it is a 

grandfathered health plan in any plan materials provided to participants 

and beneficiaries that describe the benefits provided under the plan? .............

To maintain status as a grandfathered group health plan, the plan must 

include a statement, in any plan materials provided to a participant or 

beneficiary describing the benefits under the plan, that the plan believes it 

is a grandfathered health plan within the meaning of section 1251 of the 

Affordable Care Act and must provide contact information for questions and 

complaints. Model language is available. See 29 CFR 2590.715-1251(a)(2).

For all plans that, based on questions 43 through 54, have not relinquished 

grandfathered status, complete question 55.

Question 55 – Is the plan maintaining records documenting the terms of the 

plan in connection with the coverage in effect on March 23, 2010, and are 

these records made available upon request?........................................................

To maintain status as a grandfathered group health plan the plan must 

maintain records documenting the terms of the plan in connection with the 

coverage that was in effect on March 23, 2010, and any other documents 

necessary to verify, explain, or clarify its status as a grandfathered health 

plan. These records must be maintained for as long as the plan takes the 

position that it is grandfathered, and must be available for examination upon 

request. See 29 CFR 2590.715-1251(a)(3)(i)(A) & (i)(B), as amended.

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Section B. Determining Compliance with the Affordable Care Act Extension 

of Dependent Coverage of Children to Age 26 Provisions in Part 7 of ERISA

Note: This provision is applicable for plan years beginning on or after Sept. 23, 

2010. This provision applies to both grandfathered and non-grandfathered group 

health plans. 

Question 56 – Does the plan provide coverage for dependent 

children?...................................................................................................................... 

If the answer to this question is no, proceed to Section C. These provisions 

are only applicable to group health plans that provide coverage to dependent 

children. If the answer is “yes”, proceed to question 57.

If the answer to the question below is “yes”, the plan is in compliance with 

the rules regarding Dependent Coverage to Age 26.

Question 57 – Does the plan make dependent coverage available for children 

to age 26? ................................................................................................................

Plans and issuers cannot deny or restrict dependent coverage for a child who 

is under age 26 other than in terms of a relationship between a child and the 

participant. Thus, plans and issuers cannot deny or restrict dependent coverage 

for a child who is under age 26 based on the presence or absence of financial 

dependency upon or residency with the participant or any other person, student 

status, employment or any combination of these factors. In addition, plans and 

issuers cannot limit dependent coverage based on whether the child under age 26 

is married. The Affordable Care Act and implementing regulations do not require 

plans to cover children of children. See 29 CFR 2590.715-2714(b) & (c).

The terms of the plan or coverage cannot vary based on age, except for children 

who are age 26 or older. See 29 CFR 2590.715-2714(d).

Tip: A plan or issuer does not fail to satisfy the requirements regarding 

Dependent Coverage to Age 26 because the plan limits health coverage for 

children until the child turns 26 to only those children who are described in 

section 152(f)(1) of the Code (That section of the Code defines children to 

include only sons, daughters, stepchildren, adopted children (including children 

placed for adoption), and foster children.). For an individual not described 

in Code section 152(f)(1), such as a grandchild or niece, a plan may impose 

additional conditions on eligibility for health coverage, such as a condition that 

the individual be a dependent for income tax purposes. See DOL FAQs About the 

Affordable Care Act Implementation Part I, question 14 at dol.gov/ebsa/faqs/faqaca.html.

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Section C. Determining Compliance with the Affordable Care Act 

Rescission Provisions in Part 7 of ERISA

Note: This provision is applicable for plan years beginning on or after Sept. 23, 

2010. This provision applies to both grandfathered and non-grandfathered group 

health plans.

A rescission is a cancellation or discontinuance of coverage that has retroactive 

effect; this includes a cancellation that treats a policy as void from the time of 

the group’s enrollment or a cancellation that voids benefits paid up to one year 

before the cancellation. A rescission is not the cancellation or discontinuance of 

coverage that has only a prospective effect; or the cancellation or discontinuance 

of coverage if effective retroactively to the extent it is based on a failure to timely 

pay required premiums or contributions towards the cost of coverage. See

29 CFR 2590.715-2712(a)(2).

If the answer to the question below is “yes” the plan is in compliance with 

the rules regarding rescission of coverage.

Question 58 – Does the plan only rescind coverage for instances where 

an act, practice, or omission that constitutes fraud, or an intentional 

misrepresentation of material fact has occurred? ...............................................

A group health plan, or health insurance issuer offering group health 

insurance coverage, must not rescind coverage with respect to an individual 

(including a group to which the individual belongs, or family coverage 

in which the individual is included) once the individual is covered under 

the plan or coverage, unless the individual (or a person seeking coverage 

on behalf of the individual) performs an act, practice, or omission that 

constitutes fraud, or makes an intentional misrepresentation of material fact, 

as prohibited by the terms of the plan or coverage. See 29 CFR 2590.715-

2712(a)(1).

Tip: Some employers’ human resource departments may reconcile lists of 

eligible individuals with their plan or issuer via data feed only once per month. 

If a plan covers only active employees (subject to the COBRA continuation 

coverage provisions) and an employee pays no premiums for coverage after 

termination of employment, the Departments do not consider the retroactive 

elimination of coverage back to the date of termination of employment, due 

to delay in administrative record-keeping, to be a rescission. Similarly, if a 

plan does not cover ex-spouses (subject to the COBRA continuation coverage 

provisions) and the plan is not notified of a divorce and the full COBRA premium 

is not paid by the employee or ex-spouse for coverage, the Departments do 

not consider a plan’s termination of coverage retroactive to the divorce to be 

a rescission of coverage. (Of course, in such situations COBRA may require 

coverage to be offered for up to 36 months if the COBRA applicable premium is 

paid by the qualified beneficiary.) See DOL FAQs About the Affordable Care Act 

Implementation Part II, question 7 at dol.gov/ebsa/faqs/faq-aca2.html.

YES NO N/A

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Section D. Determining Compliance with the Affordable Care Act 

Prohibitions on Lifetime Limits and Restrictions on Annual Limits in Part 7 

of ERISA

Note: This provision is applicable for plan years beginning on or after Sept. 23, 

2010. This provision applies to both grandfathered and non-grandfathered group 

health plans.

The restrictions on annual limits do not apply to health flexible spending 

arrangements (FSAs), medical savings accounts (MSAs), or health savings 

accounts (HSAs). In the case of health reimbursement accounts (HRAs) that 

are integrated with other group health plan coverage which complies with the 

prohibitions on lifetime and annual limits, the fact that benefits under the HRA

by itself are limited does not violate these rules. Stand-alone HRAs limited to 

retirees only are not subject to these rules. (For more information about the 

application of the market reforms and other provisions of the Affordable Care Act 

to HRAs, health FSAs, and certain other employer healthcare arrangements, see 

Technical Release 2013-03, available at dol.gov/ebsa/newsroom/tr13-03.html.

1. Lifetime Limits

If the answer to the question below is “yes” the plan is in compliance with 

the rules regarding prohibitions on lifetime limits.

Question 59 – Does the plan comply with the Affordable Care Act’s 

prohibition on lifetime limits?................................................................................

A group health plan or issuer may not establish any lifetime limit on the 

dollar amount of benefits for any individual. This prohibition applies for 

plan years beginning on or after September 23, 2010. See 29 CFR 2590.715-

2711(a)(1).

Tip: These rules do not prevent a plan or issuer from placing lifetime dollar 

limits with respect to any individual on specific covered benefits that are not 

essential health benefits (to the extent this is permissible under applicable Federal 

and State law). See 29 CFR 2590.715-2711(b)(1).

Note: “Essential health benefits” refers to essential benefits under Section 

1302(b) of the Affordable Care Act and applicable regulations (issued by HHS) 

including the Frequently Asked Question on Essential Health Benefits Bulletin.

For plan years beginning before the issuance of regulations defining “essential 

health benefits,” for purposes of enforcement, the Departments will take into 

account good faith efforts to comply with a reasonable interpretation of the term 

“essential health benefits.” For this purpose, a plan or issuer must apply the 

definition of essential health benefits consistently. See Preamble to Interim 

Final Regulations, at 75 FR 37188, 37191.

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2. Annual Limits

If the answer to the question below is “yes” the plan is in compliance with 

the rules regarding prohibitions/restrictions on annual limits.

Question 60 – Does the plan comply with the Affordable Care Act’s 

prohibition on annual limits?.................................................................................

For plan years beginning on or after January 1, 2014, a plan may not establish, 

for any individual, an annual limit on the dollar amount of benefits that are 

essential health benefits.

Tip: These rules do not prevent a plan or issuer from placing annual dollar limits 

with respect to any individual on specific covered benefits that are not essential 

health benefits (to the extent this is permissible under applicable Federal and 

State law). See 29 CFR 2590.715-2711(b)(1).

Section E. Determining Compliance with the Affordable Care Act 

Prohibition on Preexisting Condition Exclusions 

This provision applies to both grandfathered and non-grandfathered group health 

plans.

The definition of preexisting condition exclusion includes any limitation 

or exclusion of benefits (including a denial of coverage) applicable to an 

individual as a result of information relating to an individual’s health status 

before the individual’s effective date of coverage (or if coverage is denied, the 

date of denial), such as a condition identified as a result of a pre-enrollment 

questionnaire or a physical examination given to the individual, or a review of 

medical records relating to the pre-enrollment period. See 29 CFR 2590.701-2.

If the answer to the following question is “yes” the plan is in compliance 

with the prohibition on preexisting condition exclusions.

Question 61 – Does the plan comply with the Affordable Care Act by not 

imposing a preexisting condition exclusion? .......................................................

For plan years beginning on or after January 1, 2014, group health plans may 

not impose any preexisting condition exclusions. See 29 CFR 2590.715-

2704(a)(1).

Tip: Some preexisting condition exclusions are clearly designated as such in 

the plan documents. Others are not. Check for hidden preexisting condition 

exclusion provisions. A hidden preexisting condition exclusion is not designated 

as a preexisting condition exclusion, but restricts benefits based on when a 

condition arose in relation to the effective date of coverage.

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Example: A plan excludes coverage for cosmetic surgery unless the surgery 

is required by reason of an accidental injury occurring after the effective date 

of coverage. This plan provision operates as a preexisting condition exclusion 

because only people who were injured while covered under the plan receive 

benefits for treatment. People who were injured while they had no coverage (or 

while they had prior coverage) do not receive benefits for treatment. Accordingly, 

this plan provision limits benefits relating to a condition because the condition 

was present before the effective date of coverage, and is considered a preexisting 

condition exclusion.

SECTION F- Compliance with the 90-day Waiting Period Limitation 

Provision

Use the following questions to help determine whether the group health plan 

complies with the Departments’ 90-day waiting period limitation regulations. 

See final regulations issued by the Departments on February 24, 2014 at 29 CFR 

2590.715-2708. 

Note: PHS Act section 2708, as added by the Affordable Care Act and 

incorporated into section 715 of ERISA, prohibits the application of any waiting 

period that exceeds 90 days. Plans are not required to have a waiting period, and 

the provision does not require plan sponsors to offer coverage to any particular 

employee or class of employees. This provision applies to grandfathered health 

plans and non-grandfathered plans.

Question 62- Does the plan apply a waiting period that exceeds 90-days? .......

A waiting period is defined as the period that must pass before coverage for 

an individual who is otherwise eligible to enroll under the terms of a group 

health plan can become effective. See ERISA section 701(b)(4); 29 CFR 

2590.715-2708(b)

Being eligible for coverage under the terms of the plan generally means 

having met the plan’s substantive eligibility conditions (such as, for example, 

being in an eligible job classification, achieving job-related licensure 

requirements specified in the plan’s terms, or satisfying a reasonable 

and bona fide employment-based orientation period). See 29 CFR 2590-

715.2708(c)(1). 

Variable Hour Employees: 

If a plan conditions eligibility on an employee regularly having a specified 

number of hours of service per period (or working full-time), and it cannot be 

determined that a newly hired employee is reasonably expected to regularly 

work that number of hours per period (or work full-time), the plan may 

take a reasonable period of time, not to exceed 12 months and beginning 

on any date between the employee’s start date and the first day of the first 

calendar month following the employee’s start date, to determine whether 

the employee meets the plan’s eligibility condition. See 29 CFR 2590.715-

2708(c)(3)(i).

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Tip: Except in cases in which a waiting period that exceeds 90 days is imposed 

in addition to a measurement period, the time period for determining whether 

an employee meets the plan’s eligibility condition will not be considered to be 

designed to avoid compliance with the 90-day waiting period limitation if the 

coverage is made effective no later than 13 months from the employee’s start 

date, plus any time remaining until the first day of the next calendar month.

Cumulative Hours of Service Requirements:

If a plan conditions eligibility on an employee having completed a number of 

cumulative hours of service, the eligibility condition is not considered to be 

designed to avoid compliance with the 90-day waiting period limitation if the 

cumulative hours-of-service requirement does not exceed 1,200 hours. The 

plan’s waiting period must begin once the new employee satisfies the plan’s 

cumulative hours-of-service requirement. See 29 CFR 2590.715-2708(c)(3)

(ii). 

Limitation on Orientation Periods

To the extent that an orientation period is not used as a subterfuge for the 

passage of time, or designed to avoid compliance with the 90-day waiting period 

limitation, an orientation period is permitted only if it does not exceed one 

month. One month is determined by adding one calendar month and subtracting 

one calendar day, measured from an employee’s start date in a position that is 

otherwise eligible for coverage. See 29 CFR 2590.715-2708 (c)(3)(iii).

Tip: It is not permissible under the 90-day rule to delay coverage until the first 

day of the month following completion of a 90-day waiting period. See 29 CFR 

2590.715-2708 (e). 

If you answered “Yes” to the above question under Section F, the plan 

violates PHS Act Section 2708. 

Section G. Determining Compliance with the Affordable Care Act 

Provisions Regarding the provision of the Summary of Benefits and 

Coverage (SBC) and Uniform Glossary

Note: These provisions do apply to grandfathered health plans.

The Affordable Care Act provides for new disclosure tools, the Summary of 

Benefits and Coverage (SBC) and Uniform Glossary, to help consumers better 

compare coverage options available to them in both the individual and group 

health insurance coverage markets. Generally, group health plans and health 

insurance issuers are required to provide the SBC and Uniform Glossary free of 

charge. The Departments published a final rule setting forth the requirements for 

who must provide and who is entitled to receive an SBC and Uniform

Glossary, when these documents must be provided, the content required in the 

documents, and the form and manner of how the documents can be provided. In 

addition, the Departments published a notice that sets forth the required template 

for the SBC and Uniform Glossary documents along with instructions and sample 

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language for completing the template. These documents are available on the EBSA 

Website at: dol.gov/ebsa/healthreform/. The SBC and Uniform Glossary must 

be provided in a culturally and linguistically appropriate manner. The rules for 

determining whether a language other than English must be made available are the 

same as the rules for Internal Claims and Appeals and External Review, discussed 

in Section J of this compliance aid. HHS has made available translated versions of 

the template and glossary in the potentially required languages at: cciio.cms.gov/

resources/other/index.html.

Transitional Relief Providing Flexibility and Emphasizing Good Faith 

Progress Towards Compliance

The Department is working together with employers and issuers to assist them in 

coming into compliance with these requirements. Specifically, in the instructions 

for completing the SBC, the Department stated that to the extent a plan’s terms 

do not reasonably correspond to the template and instructions, the template 

should be completed in a manner that is as consistent with the instructions as 

reasonably as possible, while still accurately reflecting the plan’s terms. See 

Instructions Guide for Group Coverage, page 1 General Instructions. In addition, 

compliance assistance is a high priority for the Departments. Implementation 

will be marked by an emphasis on assisting (rather than imposing penalties on) 

plans and issuers that are working diligently and in good faith to understand and 

come into compliance with the new law. During the first year of applicability, 17

the Departments did not impose penalties on plans and issuers that were working 

diligently and in good faith to comply. The Departments are extending the 

previously-issued enforcement and transition relief until further guidance is issued. 

The Departments will continue to work with stakeholders over time to achieve 

maximum uniformity for consumers and certainty for the regulated community. 

See ACA Implementation FAQ Part XIX, Q8. 

The questions below focus on provision of the SBC by group health plans 

to participants and beneficiaries. The final regulations also require health 

insurance issuers to provide the SBC to group health plan sponsors and 

participants and beneficiaries. More information on these requirements can 

be found at dol.gov/ebsa/healthreform.

The following questions have been developed to assist in determining 

compliance with the rules regarding the Summary of Benefits and Coverage 

and Uniform Glossary.

 17The term “first year of applicability” refers to SBCs and uniform glossaries provided with 

respect to coverage beginning before January 1, 2014.

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17The term “first year of applicability” refers to SBCs and uniform glossaries provided with 
YES NO N/A

Question 63 – Does the plan provide an SBC, as required? ................................

In Connection with Enrollment

When providing the SBC to participants and beneficiaries, group health 

plans and issuers must provide the SBC with respect to each benefit package 

offered for which they are eligible (See 29 CFR 2590.715-2715(a)(1)(ii)

(A)) as part of any written application materials distributed by the plan or 

issuer for enrollment. If no written application materials are distributed for 

enrollment, the SBC must be provided no later than the first date a participant 

is eligible to enroll in coverage for themselves or any beneficiaries. See 

29 CFR 2590.715-2715(a)(1)(ii)(B). For this purpose, written application 

materials include any forms or requests for information, in paper form or 

through a Website or email, that must be completed for enrollment. See ACA 

Implementation FAQ Part VIII, Q9.

Tips: The requirement to provide an SBC by both a health insurance issuer and a 

group health plan to participants and beneficiaries can be satisfied for both entities 

as long as one entity provides the required SBC within the required timeframes. 

See 29 CFR 2590.715-2715(a)(1)(iii)(A).

If a participant and any beneficiaries are known to reside at the same address, a 

single SBC provided to that address will satisfy the obligation to provide for all 

individuals at the address. Under this circumstance, the obligation will also be 

satisfied if the SBC is furnished to the participant in electronic form. However 

if a beneficiary’s last known address is different than the participant’s address, a 

separate SBC must be mailed to the beneficiary’s address. See 29 CFR 2590.715-

2715(a)(1)(iii)(B) and ACA Implementation FAQ Part VIII, Q10.

Group health plans are permitted to integrate the SBC with other summary 

materials, such as the SPD, as long as the SBC is intact and prominently displayed 

at the beginning of the materials (for example, immediately after the table of 

contents in an SPD) and all of the timing requirements are met. See 77 FR 8707.

The Departments generally allow electronic delivery of the SBC and Uniform 

Glossary where appropriate. For participants and beneficiaries who are already 

enrolled in coverage under a group health plan, an SBC may be provided 

electronically if the requirements of the Department of Labor’s electronic 

safe harbor are met. See ACA Implementation FAQ Part VIII, Q10 citing the 

Department of Labor’s disclosure regulation at 29 CFR 2520.104b-1. For 

participants and beneficiaries who are eligible but not enrolled for coverage, the 

SBC may be provided electronically if the format is readily accessible; the SBC 

is provided in paper form upon request; and if the electronic form is an Internet 

posting, the plan or issuer timely notifies the individual that the documents are 

available in paper form upon request. See 29 CFR 2590.715-2715(a)(3). An SBC 

may be provided electronically to participants and beneficiaries in connection 

with their online enrollment or online renewal of coverage under the plan. SBCs 

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may also be provided electronically to participants and beneficiaries who request 

an SBC online. In either instance, a paper copy must be provided upon request. 

See ACA Implementation FAQ Part IX, Q1.

Question 64 – Does the plan make available the Uniform Glossary, as 

required? .................................................................................................................

The Uniform Glossary includes statutorily required terms, as well as multiple 

additional terms recommended by the NAIC. The Uniform Glossary is 

available on the DOL Website at dol.gov/ebsa/healthreform/. The Uniform 

Glossary may not be modified by plans or issuers. See 29 CFR 2590.715-

2715(c)(3); 77 FR 8708.

The final rule requires group health plans and issuers to make the Uniform 

Glossary available upon request, in either paper or electronic form (as 

requested), within seven business days. See 29 CFR 2590.715-2715(c)(4). 

This requirement may be satisfied by providing an internet address where an 

individual may review and obtain the Uniform Glossary as well as a contact 

phone number to obtain a paper copy of the Uniform Glossary. See 29 CFR 

2590.715-2715(a)(2)(i)(L).

Section H. Determining Compliance with the Patient Protection Provisions 

of the Affordable Care Act in Part 7 of ERISA

Note: This provision is applicable for plan years beginning on or after Sept. 23, 

2010. This provision does not apply to grandfathered health plans.

1. Choice of Healthcare Professional

A plan or issuer that requires or provides for a participant or beneficiary to 

designate a participating primary care provider must permit each participant or 

beneficiary to designate any participating primary care provider who is available 

to accept the participant or beneficiary. With respect to a child, the plan or 

issuer must permit the designation of a physician who specializes in pediatrics 

as a child’s primary care provider, if the provider participates in the network of 

the plan or issuer and is available to accept the child. See 29 CFR 2590.715-

2719A(a)(1) & (a)(2).

A group health plan or issuer that provides obstetrical or gynecological (OB/

GYN) care and requires the designation of an in-network primary care provider, 

may not require authorization or referral by the plan, issuer, or any person 

(including a primary care provider) for a female participant or beneficiary 

who seeks coverage for OB/GYN care provided by a participating health care 

professional who specializes in obstetrics and gynecology. (This includes any 

individual authorized under State law to provide OB/GYN care, including a 

person other than a physician). See 29 CFR 2590.715-2719A(a)(3).

115

If you are completing this section as part of a review of a grandfathered health plan, STOP here. The 

following sections address provisions that do not apply to grandfathered health plans.
YES NO N/A

Question 65 – Does the plan require or provide for designation 

of a participating primary care provider by any participant or 

beneficiary?.................................................................................................................

If the answer is ‘no’, enter ‘N/A’ for the following questions and proceed to 

Question 72.

If the answer to ALL of the questions below is “yes” the plan is in 

compliance with the choice of healthcare professional provisions of the rules 

regarding patient protections.

Question 66 – Does the plan permit each participant or beneficiary to 

designate any participating primary care provider who is available to accept 

the participant or beneficiary? .............................................................................

If a group health plan, or a health insurance issuer offering group health 

insurance coverage, requires or provides for designation by a participant or 

beneficiary of a participating primary care provider, then the plan or issuer 

must permit each participant or beneficiary to designate any participating 

primary care provider who is available to accept the participant or 

beneficiary. See 29 CFR 2590.715-2719A(a)(1)(i).

Question 67 – Does the plan provide a notice informing each participant of 

the terms of the plan or health insurance coverage regarding designation of 

a primary care provider? .....................................................................................

If a group health plan or health insurance issuer requires the designation by a 

participant or beneficiary of a primary care provider, the plan or issuer must 

provide a notice informing each participant of the terms of the plan or health 

insurance coverage regarding designation of a primary care provider that any 

participating primary care provider who is available to accept the participant 

or beneficiary can be designated. See 29 CFR 2590.715-2719A(a)(4)(i)(A).

Tip: This notice must be provided any time the plan provides a participant with 

an SPD or other similar description of benefits under the plan. See 29 CFR 

2590.715-2719A(a)(4)(ii).

Question 68 – With respect to a child, does the plan permit the participant 

or beneficiary to designate a physician who specializes in pediatrics as the 

child’s primary care provider if the provider participates in the network of 

the plan or issuer and is available to accept the child? .....................................

If a group health plan, or a health insurance issuer offering group health 

insurance coverage, requires or provides for the designation of a participating 

primary care provider for a child by a participant or beneficiary, the plan or 

issuer must permit the participant or beneficiary to designate a physician 

(allopathic or osteopathic) who specializes in pediatrics as the child’s primary 

care provider if the provider participates in the network of the plan or issuer 

and is available to accept the child. See 29 CFR 2590.715-2719A(a)(2)(i).

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Question 69 – With respect to a child, does the plan provide a notice 

informing each participant of the terms of the plan or health insurance 

coverage regarding designation of a primary care provider and the right to 

designate any participating physician who specializes in pediatrics as the 

primary care provider? .........................................................................................

If a group health plan or health insurance issuer requires the designation 

by a participant or beneficiary of a primary care provider, the plan or issuer 

must provide a notice informing each participant of the terms of the plan or 

health insurance coverage regarding designation of a primary care provider 

with respect to a child, that any participating physician who specializes 

in pediatrics can be designated as the primary care provider. See 29 CFR 

2590.715-2719A(a)(4)(i)(B).

Tip: This notice must be provided any time the plan provides a participant with 

an SPD or other similar description of benefits under the plan. See 29 CFR 

2590.715-2719A(a)(4)(ii).

Question 70 – Does the plan provide coverage for OB/GYN care provided 

by a participating health care professional who specializes in obstetrics 

or gynecology for a female participant or beneficiary without requiring 

authorization or referral by the plan, issuer, or any person (including a 

primary care provider)? ........................................................................................

For purposes of this provision, a health care professional who specializes in 

obstetrics or gynecology is any individual (including a person other than a 

physician) who is authorized under applicable State law to provide obstetrical 

or gynecological care. The plan or issuer may require such a professional to 

agree to otherwise adhere to the plan’s or issuer’s policies and procedures, 

including procedures regarding referrals and obtaining prior authorization 

and providing services pursuant to a treatment plan (if any) approved by the 

plan or issuer. See 29 CFR 2590.715-2719A(a)(3)(i)(A).

A plan or issuer must treat the provision of OB/GYN care, and the ordering 

of related OB/ GYN items and services, by a participating health care 

professional who specializes in obstetrics or gynecology as the authorization 

of the primary care provider. See 29 CFR 2590.715-2719A(a)(3)(i)(B).

Question 71 – Does the plan provide a notice informing each participant of 

the terms of the plan or coverage regarding designation of a primary care 

provider and that the plan may not require authorization or referral for 

obstetrical or gynecological care by a participating health care professional 

who specializes in obstetrics or gynecology? .......................................................

If a group health plan or health insurance issuer requires the designation by a 

participant or beneficiary of a primary care provider, the plan or issuer must 

provide a notice informing each participant of the terms of the plan or health 

insurance coverage regarding designation of a primary care provider that the 

plan may not require authorization or referral for obstetrical or gynecological 

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care by a participating health care professional who specializes in obstetrics 

or gynecology. See 29 CFR 2590.715-2719A(a)(4)(i)(C).

Tip: This notice must be provided anytime the plan provides a participant with 

an SPD or other similar description of benefits under the plan. See 29 CFR 

2590.715-2719A(a)(4)(ii).

2. Coverage of Emergency Services

Question 72 – Does the plan provide any benefits with respect to services in 

an emergency department of a hospital? .............................................................

If the answer is ‘no,’ enter ‘N/A’ for the following questions and proceed to 

Section I. 

Note: Small group insured plans are required to cover essential health benefits, 

which include emergency services. 

If the answer to ALL of the questions below is “yes” the plan is in 

compliance with the coverage of emergency services provisions of the rules 

regarding patient protections.

Question 73 – Does the plan provide coverage of emergency services without 

the need for any prior authorization determination, even if the emergency 

services are provided on an out-of-network basis?.............................................

A plan or issuer subject to the requirements of this section must provide 

coverage for emergency services without the need for any prior authorization 

determination, even if the emergency services are provided on an out-ofnetwork basis. See 29 CFR 2590.715-2719A(b)(2)(i).

Question 74 – Does the plan provide coverage of emergency services 

without regard to whether the health care provider furnishing the 

emergency services is a participating network provider with respect to the 

services?.......................................................................................................................

A plan or issuer subject to the requirements of this section must provide 

coverage for emergency services without regard to whether the health 

care provider furnishing the emergency services is a participating network 

provider with respect to the services. See 29 CFR 2590.715-2719A(b)(2)(ii).

Question 75 – Does the plan provide coverage of emergency services 

provided out-of-network without imposing any administrative requirement 

or limitation on coverage that is more restrictive than the requirements that 

apply to emergency services provided in-network? ............................................

If the emergency services are provided out-of-network, the plan must provide 

the emergency services without imposing any administrative requirement 

or limitation on coverage that is more restrictive than the requirements 

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or limitations that apply to emergency services received from in-network 

providers. See 29 CFR 2590.715-2719A(b)(2)(iii).

Question 76 – When providing emergency services out-of-network, does the 

plan impose cost-sharing requirements that comply with the requirements of 

the interim final regulations? ................................................................................

Any cost-sharing requirement expressed as a copayment amount or 

coinsurance rate imposed with respect to a participant or beneficiary for outof-network emergency services cannot exceed the cost-sharing requirement 

imposed with respect to a participant or beneficiary if the services were 

provided in-network. However, a participant or beneficiary may be required 

to pay, in addition to the in-network cost sharing, the excess of the amount 

the out-of-network provider charges over the amount the plan or issuer is 

required to pay under this section. See 29 CFR 2590.715-2719A(b)(3)(i).

A plan or issuer complies with the requirements if it provides benefits with 

respect to an emergency service in an amount equal to the greatest of the 

following three amounts (which are adjusted for in-network cost-sharing 

requirements):

(A) The amount negotiated with in-network providers for the emergency 

service furnished, excluding any in-network copayment or coinsurance 

imposed. (See 29 CFR 2590.715-2719A(b)(3)(i)(A) for more detailed 

information, including how to determine this amount if there is more 

than one amount negotiated with in-network providers for the emergency 

service.)

(B) The amount for the emergency service calculated using the same 

method the plan generally uses to determine payments for out-ofnetwork services (such as the usual, customary, and reasonable amount), 

excluding any in-network copayment or coinsurance imposed. See 29 

CFR 2590.715-2719A(b)(3)(i)(B).

(C) The amount that would be paid under Medicare for the emergency 

service, excluding any in-network copayment or coinsurance imposed. 

See 29 CFR 2590.715-2719A(b)(3)(i)(C).

Tip: Any other cost-sharing requirement, such as a deductible or out-of-pocket 

maximum, may be imposed with respect to out-of-network emergency services 

only if the cost-sharing requirement generally applies to out-of-network benefits. 

See 29 CFR 2590.715-2719A(b)(3)(ii).

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Question 77 – Does the plan provide coverage of emergency services without 

regard to any other term or condition of the coverage, other than the 

exclusion or coordination of benefits, a permissible affiliation or waiting 

period, or applicable cost-sharing requirements? ..............................................

A plan or issuer subject to the requirements of this section must provide 

coverage for emergency services without regard to any other term or 

condition of the coverage, other than the exclusion or coordination of 

benefits, an affiliation or waiting period permitted under part 7 of ERISA, 

part A of title XXVII of the PHS Act, or chapter 100 of the Internal Revenue 

Code, or applicable cost sharing. See 29 CFR 2590.715-2719A(b)(2)(v).

Section I. Determining Compliance with the Affordable Care Act Coverage 

of Preventive Services Provisions in Part 7 of ERISA

Note: This provision is applicable for plan years beginning on or after Sept. 23, 

2010. This provision does not apply to grandfathered health plans.

Group health plans and health insurance issuers must provide coverage for, and 

must not impose cost-sharing requirements with respect to, certain recommended 

preventive services. Nothing prevents plans or issuers from providing coverage 

for preventive items and services in addition to the recommended preventive 

services required under these regulations. See 29 CFR 2590.715-2713(a)(1) & (a)

(5).

A complete list of recommendations and guidelines that include services that 

are required to be covered under these interim final regulations can be found 

at HealthCare.gov/center/regulations/prevention.html. Any changes to or new 

recommendations and guidelines will be noted at this site. Plans must cover any 

new recommended service within one year after the date the recommendation or 

guidance is issued. Therefore, by visiting the site once per year, plans and issuers 

will have straightforward access to all the information necessary to determine any 

additional items and services that must be covered without cost-sharing and any 

items or services that are no longer required to be covered.

If the answer to ALL of the questions below is “yes” the plan is in 

compliance with the rules regarding preventive services.

Question 78 – Does the plan provide coverage without imposing any costsharing requirements for evidence-based items or services that have in effect 

a rating of A or B in the current recommendations of the United States 

Preventive Services Task Force? ...........................................................................

Plans and issuers must provide coverage for evidence-based items or services 

that have in effect a rating of A or B in the current recommendations of the 

United States Preventive Services Task Force. See 29 CFR 2590.715-2713(a)

(1)(i).

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Note: Recommendations of the United States Preventive Services Task Force 

regarding breast cancer screening, mammography, and prevention issued in or 

around November 2009 are not considered to be current.

Question 79 – Does the plan provide coverage without imposing any 

cost-sharing requirements for immunizations for routine use in children, 

adolescents, and adults that have in effect a recommendation from the 

Advisory Committee on Immunization Practices of the Centers for Disease 

Control and Prevention?.........................................................................................

For the purpose of this section, a recommendation from the Advisory 

Committee on Immunization Practices of the Centers for Disease Control and 

Prevention is considered in effect after it has been adopted by the Director 

of the Centers for Disease Control and Prevention, and a recommendation is 

considered to be for routine use if it is listed on the Immunization Schedules 

of the Centers for Disease Control and Prevention. See 29 CFR 2590.715-

2713(a)(1)(ii).

Question 80 – With respect to infants, children, and adolescents, does the 

plan provide coverage without imposing any cost-sharing requirements 

for evidence-informed preventive care and screenings provided for in 

comprehensive guidelines supported by the Health Resources and Services 

Administration?..........................................................................................................

With respect to infants, children, and adolescents, a plan or issuer must 

provide coverage for evidence-informed preventive care and screenings 

provided for in comprehensive guidelines supported by the Health Resources 

and Services Administration. See 29 CFR 2590.715-2713(a)(1)(iii).

Question 81 – With respect to women, does the plan provide coverage 

without imposing any cost-sharing requirements for evidence-informed 

preventive care and screenings provided for in comprehensive guidelines 

supported by the Health Resources and Services Administration? ..................

A complete list of guidelines that are required to be covered can be found at: 

hrsa.gov/womensguidelines/. (Note: there is a limited exception for certain 

employers regarding coverage for certain women’s preventive services; see 

dol.gov/ebsa/healthreform for updated guidance).

With respect to women, a plan or issuer must provide coverage for evidenceinformed preventive care and screenings provided for in comprehensive 

guidelines supported by the Health Resources and Services Administration. 

See 29 CFR 2590.715-2713(a)(1)(iv).

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Question 82 – Does the plan provide coverage for office visits without 

imposing cost sharing requirements when recommended preventive services 

are not billed separately from an office visit and is the primary purpose of 

the office visit? ........................................................................................................

If a recommended preventive service or item is not billed separately (or is not 

tracked as individual encounter data separately) from an office visit and the 

primary purpose of the office visit is the delivery of such a service or item, 

then a plan or issuer may not impose cost-sharing requirements with respect 

to the office visit. See 29 CFR 2590.715-2713(a)(2)(ii).

Tip: If a recommended preventive service is billed separately from an office 

visit, or if the recommended preventive service is not billed separately and the 

primary purpose of the office visit is not delivery of the recommended preventive 

service, then a plan or issuer may impose cost-sharing with respect to the office 

visit. See 29 CFR 2590.715-2713(a)(2)(i) & (iii).

Additional tips:

Plans and issuers that have a network of providers are not required to provide 

coverage for and may impose cost-sharing requirements for recommended 

preventive services delivered by an out-of-network provider. See 29 CFR 

2590.715-2713(a)(3).

Plans and issuers may use reasonable medical management techniques 

to determine the frequency, method, treatment, or setting for the 

recommended preventive services to the extent these are not specified in the 

recommendations or guidelines. See 29 CFR 2590.715-2713(a)(4).

Plans and issuers can impose cost-sharing for a treatment that is not a 

recommended preventive service under these regulations, even if the 

treatment resulted from a recommended preventive service. See 29 CFR 

2590.715-2713(a)(5) and ACA Implementation FAQs Part XII Q5.

Section J. Determining Compliance with the Affordable Care Act Provisions 

Regarding Internal Claims and Appeals and External Review in Part 7 of 

ERISA

The internal claims and appeals and external review provisions of Part 7 of 

ERISA do not apply to grandfathered health plans.

Note: There have been several phases of guidance issued regarding the internal 

claims and appeals and external review provisions under the Affordable Care 

Act. More information about the requirements regarding internal claims and 

appeals and external review processes under ERISA is available at dol.gov/ebsa.

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1. Internal Claims and Appeals

Under the Affordable Care Act group health plans and health insurance issuers 

offering group health insurance coverage were required to implement an 

effective internal claims and appeals process for plan years beginning on or after 

September 23, 2010. In general, the interim final regulations require plans and 

issuers to comply with the DOL claims procedure rule under 29 CFR 2560.503-

1 and impose specific additional requirements and include some clarifications 

(referred to as the “additional standards” for internal claims and appeals). In 

addition to meeting the following requirements, the plan is required to comply 

with all of the requirements of the DOL claims procedure rule under 29 CFR 

2560.503-1.

The following questions have been developed to assist in determining 

compliance with the additional standards for internal claims and appeals 

processes and is not intended to determine compliance with the DOL claims 

procedure rule.

Question 83 – Does the plan provide internal claims and appeals processes 

with respect to rescissions of coverage? ...............................................................

Under the DOL claims procedure rule, adverse benefit determinations 

eligible for internal claims and appeals processes generally include denial, 

reduction, or termination of, or a failure to provide or make a payment (in 

whole or in part) for a benefit (including a denial, reduction, termination, or 

failure to make a payment based on the imposition of a preexisting condition 

exclusion, a source of injury exclusion, or other limitation on covered 

benefits). See 29 CFR 2560.503-1(m)(4).

The Department’s regulations broaden the DOL claims procedure rule’s 

definition of “adverse benefit determination” to include rescissions of 

coverage. Therefore, rescissions of coverage are also eligible for internal 

claims and appeals processes, whether or not the rescission has an adverse 

effect on any particular benefit at the time of an appeal. See 29 CFR 

2590.715-2719(a)(2)(i); 29 CFR 2560.503-1.

This provision is applicable for plan years beginning on or after September 

23, 2010. See 29 CFR 2590.715-2719(g).

Question 84 – Does the plan provide claimants with any new or additional 

evidence or rationale considered in connection with a claim? ...........................

The Department’s regulations clarify that plans or issuers must provide 

to claimants, free of charge, any new or additional evidence considered, 

relied upon, or generated by (or at the direction of) the plan or issuer in 

connection with a claim. This evidence must be provided as soon as possible 

and sufficiently in advance of the date on which the notice of final internal 

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adverse benefit determination is required to be provided in order to give the 

claimant a reasonable opportunity to respond prior to that date. Similarly, 

before a plan or issuer can issue a final internal adverse benefit determination 

based on a new or additional rationale, the claimant must be provided, free 

of charge, with the rationale. This rationale must be provided as soon as 

possible and sufficiently in advance of the date on which the notice of final 

internal adverse benefit determination is required to be provided in order to 

give the claimant a reasonable opportunity to respond prior to that date. See 

29 CFR 2590.715-2719(b)(2)(ii)(C).

This provision is applicable for plan years beginning on or after September 

23, 2010. See 29 CFR 2590.715-2719(g).

Question 85 – Does the plan ensure that claims and appeals are adjudicated 

in a manner that maintains independence and impartiality of decision 

making? ...................................................................................................................

The Department’s regulations clarify that plans or issuers must ensure 

that all claims and appeals are adjudicated in a manner designed to ensure 

the independence and impartiality of the persons involved in making the 

decision. Accordingly, decisions regarding hiring, compensation, termination, 

promotion, or other similar matters with respect to any individual (such as 

a claims adjudicator or medical expert) must not be made based upon the 

likelihood or perceived likelihood that the individual will support or tend to 

support a denial of benefits. See 29 CFR 2590.715-2719(b)(2)(ii)(D).

This provision is applicable for plan years beginning on or after September 

23, 2010. See 29 CFR 2590.715-2719(g).

Question 86 – Complete the following questions to ensure that the plan 

complies with the additional content requirements for any notice of adverse 

benefit determination or final internal adverse benefit determination:

86a. Does the plan or issuer ensure that any notice of adverse benefit 

determination or final internal adverse benefit determination includes 

information sufficient to identify the claim involved? .......................................

The Department’s regulations provide that plans and issuers must ensure that 

any notice of adverse benefit determination or final internal adverse benefit 

determination includes information sufficient to identify the claim involved 

including the date of service, the health care provider, and the claim amount 

(if applicable), and a statement describing the availability, upon request, of 

the diagnosis code and its corresponding meaning, and the treatment code, 

and its corresponding meaning. See 29 CFR 2590.715-2719(b)(2)(ii)(E)(1).

This provision is applicable for plan years beginning on or after July 1, 2011.

See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

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Plans or issuers must also provide to participants and beneficiaries, as soon 

as practicable, upon request, the diagnosis and treatment codes (and their 

meanings), associated with any adverse benefit determination or final internal 

adverse benefit determination. The plan or issuer must not consider a request 

for such diagnosis and treatment information, in itself, to be a request for an 

internal appeal or external review. See 29 CFR 2590.715-2719(b)(2)(ii)(E)

(1), as amended. This provision is applicable for plan years beginning on or 

after January 1, 2012. See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.

html.

86b. Does the plan or issuer ensure that any notice of adverse benefit 

determination or final internal adverse benefit determination includes an 

adequate description of the reasons for the adverse benefit determination or 

final internal adverse benefit determination? ......................................................

The Department’s regulations provide that plans and issuers must ensure 

that the reasons for the adverse benefit determination or final internal 

adverse benefit determination includes the denial code and its corresponding 

meaning, as well as a description of the standard that was used in denying the 

claim. In the case of a notice of final internal adverse benefit determination, 

this description must include a discussion of the decision. See 29 CFR 

2590.715-2719(b)(2)(ii)(E)(3).

This provision is applicable for plan years beginning on or after July 1, 2011. 

See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

86c. Does the plan or issuer ensure that any notice of adverse benefit 

determination or final internal adverse benefit determination includes 

a description of available internal appeals and external review 

processes?....................................................................................................................

The Department’s regulations provide that plans and issuers must provide 

a description of available internal appeals and external review processes, 

including information regarding how to initiate an appeal. See 29 CFR 

2590.715-2719(b)(2)(ii)(E)(4).

This provision is applicable for plan years beginning on or after July 1, 2011. 

See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

86d. Does the plan or issuer ensure that any notice of adverse benefit 

determination or final internal adverse benefit determination disclose the 

availability of, and contact information for, any applicable office of health 

insurance consumer assistance or ombudsman established under PHS Act 

section 2793?............................................................................................................

The Department’s regulations provide that plans and issuers must disclose 

the availability of, and contact information for, any applicable office of 

health insurance consumer assistance or ombudsman established under PHS 

Act section 2793 to assist enrollees with the internal claims and appeals and 

external review processes. See 29 CFR 2590.715-2719(b)(2)(ii)(E)(5).

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An updated list of the State Consumer Assistance Programs is available on the 

Department of Labor Website at dol.gov/ebsa/capupdatelist.doc.

These provisions are applicable for plan years beginning on or after July 1, 

2011. See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

Question 87 – Does the plan defer to the attending provider as to whether 

a claim involves urgent care and provide notice regarding such urgent care 

claim as required?....................................................................................................

As under 29 CFR 2560.503-1(f)(2)(i), plans or issuers must notify a claimant 

of a benefit determination (whether adverse or not) with respect to a claim 

involving urgent care as soon as possible, taking into account the medical 

exigencies, but not later than 72 hours after the receipt of the claim by the plan 

or issuer. 29 CFR 2590.715-2719(b)(2)(ii)(B), as amended.

The determination as to whether a claim involves urgent care is determined by 

the attending provider and the plan or issuer must defer to such determination. 

See 29 CFR 2590.715-2719(b)(2)(ii)(B), as amended.

This provision is applicable for plan years beginning on or after January 1, 

2012. See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

Question 88 – Does the plan comply with the requirements regarding deemed 

exhaustion of internal claims and appeals processes? ..........................................

In the case of a plan or issuer that fails to adhere to all the requirements of 

the Interim Final Rules relating to the Internal Claims and Appeals process 

with respect to a claim, the claimant is deemed to have exhausted the internal 

claims and appeals process. The internal claims and appeals process will 

not be deemed exhausted as long as the violation was: de minimus, does not 

cause, and is not likely to cause, prejudice or harm to the claimant, attributable 

to good cause or due to matters beyond the control of the plan or issuer, in 

the context of an ongoing, good faith exchange of information between the 

plan and the claimant, and is not reflective of a pattern or practice of noncompliance. See 29 CFR 2590.715-2719(b)(2)(ii)(F), as amended.

In the event that the claimant requests a written explanation of the violation, 

the plan or issuer must provide such explanation within 10 days, including a 

specific description of its bases, if any, for asserting that the violation should 

not cause the internal claims and appeals process to be deemed exhausted. See 

29 CFR 2590.715-2719(b)(2)(ii)(F), as amended.

In the case that the external review rejects the claimant’s immediate review, 

the plan must provide the claimant notice of the opportunity to resubmit and 

pursue the internal appeal of the claim. This notice must be sent within a 

reasonable time after the external reviewer rejects the claim for immediate 

review, not later than 10 days. See 29 CFR 2590.715-2719(b)(2)(ii)(F), as 

amended.

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These provisions are applicable for plan years beginning on or after January 

1, 2012. See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

Question 89 – Does the plan provide culturally and linguistically appropriate 

notices in a county that meets the applicable threshold?....................................

The Department’s regulations provide that plans and issuers must provide 

relevant notices in a culturally and linguistically appropriate manner.

The Department’s regulations establish a single threshold with respect to the 

percentage of people who are literate only in the same non-English language 

for both the group and individual markets. With respect to plans and issuers, 

the threshold percentage is set at 10 percent or more of the population 

residing in the claimant’s county, as determined based on American 

Community Survey (ACS) data published by the United States Census 

Bureau. The list of counties determined to meet the threshold is available at 

cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/Downloads/2013-clasdata.pdf. This list will be updated annually. See 29 CFR 2590.715-2719(e)

(3), as amended.

If the answer to this question is “Yes,” proceed to question 90. If the answer 

is “No,” proceed to the next section. 

Question 90 – Does the plan provide notices in a culturally and linguistically 

appropriate manner with respect to internal claims and appeals processes?

To meet this requirement the plan or issuer must:

include a one-sentence statement in the relevant non-English language 

about the availability of language services on each notice sent to an 

address in a county that meets the threshold;

provide, upon request, a notice in any applicable non-English language; 

and

provide a customer assistance process (such as a telephone hotline) 

with oral language services in the non-English language and provide 

written notices in the non-English language upon request. See 29 CFR 

2590.715-2719(e), as amended.

The translated statements are available at dol.gov/ebsa/IABDModelNotice2.

doc.

These provisions are applicable for plan years beginning on or after January 1, 

2012. See T.R. 2011-01 at dol.gov/ebsa/newsroom/tr11-01.html.

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2. External Review

Plans and issuers must comply with either a State external review process or 

the Federal external review process. The external review provisions of Part 7 of 

ERISA do not apply to grandfathered health plans.

The following questions have been developed to assist in determining 

compliance with the rules regarding the external review processes.

Question 91 – Is the plan subject to the requirements of a State external 

review process or the HHS-Administered Federal External Review 

Process? ...................................................................................................................

Non-grandfathered, self-insured group health plans subject to ERISA and the 

Code:

Generally follow requirements of the private accredited IRO process 

(established by TR 2010-01, modified by TR 2011-02).

Non-grandfathered, insured coverage:

Generally, issuers must follow the State process if the external review 

process meets either the NAIC-Similar or NAIC-Parallel process as 

determined by HHS.

However, issuers in States without a conforming State process and selfinsured non-federal governmental plans may either:

Utilize the private accredited IRO process (established by TR 2010-

01, and modified by TR 2011-02); or

Utilize the HHS-Administered Federal External Review Process.

Background information regarding external review processes for insured 

plans:

For insured coverage, HHS has determined which State external review 

processes meet the minimum requirements to apply to issuers in those States. 

See cms.gov/CCIIO/Resources/Files/external_appeals.html.

If you answered “Yes” to Question 91 above, STOP. The plan is not subject 

to the DOL Private Accredited IRO process. If you answered “No” to 

Question 91 above, continue to Question 92.

u

u

v

v

−

128

v

−

u
u

YES NO N/A

Question 92 – DOL Private Accredited IRO process: Does the plan provide 

external review for the required scope of adverse benefit determinations? .....

Under the Department’s regulations the scope of the Federal external review 

process applies to:

An adverse benefit determination, including a final internal adverse benefit 

determination, by a plan or issuer that involves medical judgment, including 

but not limited to those based on the plan’s or issuer’s requirements for 

medical necessity, appropriateness, health care setting, level of care, or 

effectiveness of a covered benefit; or its determination that a treatment is 

experimental or investigational; and

A rescission of coverage (regardless of whether or not the rescission has any 

effect on any particular benefit at that time). See 29 CFR 2590.715-2719(d)

(1)(ii), as amended.

An adverse benefit determination that relates to a participant’s or 

beneficiary’s failure to meet the requirements for eligibility under the 

terms of a group health plan (i.e., worker classification or similar issue) is 

not within the scope of the Federal external review process. See 29 CFR 

2590.715-2719(d)(1)(i), as amended.

Question 93 – DOL Private Accredited IRO process: Does the plan provide 

an effective external review process? ...................................................................

Self-insured coverage subject to ERISA and the Code may either comply 

with the standards of the private accredited IRO process or voluntarily 

comply with a State external review process if the State allows access.

If the plan is complying with the private accredited IRO process, ensure the 

plan complies with all of the standards articulated in TR 2011-02 including:

Providing effective written notice of external review

Providing limits related to filing fees

Providing claimant at least 4 months to file for external review

Requiring that IROs must be accredited

Requiring that IROs may not have conflicts of interest that influence 

independence

Providing that IRO decisions are binding on the insurer and the claimant

Requiring IROs to maintain written records for at least three years

Department of Labor clarified in TR 2011-02 that to be eligible for a safe 

harbor from enforcement from the Department of Labor and the IRS (as 

previously set forth in sub-regulatory guidance issued in ACA FAQs Part 1 

on September 20, 2010), self-insured plans will be required to contract with 

at least three IROs by July 1, 2012.

See TR 2010-01 at dol.gov/ebsa/pdf/ACATechnicalRelease2010-01.pdf, and TR2011-02 at dol.gov/ebsa/newsroom/tr11-02.html.

u

u

v

v

v

v

v

v

u

v

u

u

129

Appendix B:

Chart of Required Notices

131
For group health plans subject to Part 7 of ERISA, required disclosures include:

 Type of Disclosure Applicability Content Summary 

The notice must disclose the availability of a 

reasonable alternative standard (or possibility 

of waiver of the otherwise applicable 

standard). 

Disclosure must include contact information 

for obtaining the alternative standard and a 

statement that recommendations of an 

individual’s personal physician will be 

accommodated. 

For group health plans 

offering a health 

contingent wellness 

program in order to 

obtain a reward.

In 

te

pr

ou

th

a 

de

no

Fo

th

di

sa

st

At or 

initia

in a g

A description of individuals’ special enrollment 

rights.

All group health plans.

Description of rights 

with respect to hospital 

stays in connection with 

childbirth

(§711(d); 29 CFR 

2520.102-3(u))

Group health plans that 

provide maternity or 

newborn infant coverage.

The plan’s SPD must include a statement 

describing any requirements under Federal or 

State law applicable to the plan, and any health

insurance coverage offered under the plan, 

relating to any hospital length of stay in 

connection with childbirth for a mother or 

newborn child. If the Federal law applies in 

some areas in which the plan operates and State 

law applies in other areas, the SPD should 

describe the different areas and the Federal or 

State requirements applicable in each.

In th

Notice of special 

enrollment rights

(29 CFR 2590.701-6(c))

Wellness program 

disclosure

(§702; 29 CFR 

2590.702(f)(2)(v))

132
 Type of Disclosure Applicability Content Summary 

U

A statement that for participants and 

beneficiaries who are receiving mastectomyrelated benefits, coverage will be provided in 

a manner determined in consultation with the 

attending physician and the patient, for:

All stages of reconstruction of the breast 

on which the mastectomy was performed;

Surgery and reconstruction of the other

breast to produce a symmetrical 

appearance;

Prostheses; and

Treatment of physical complications of 

the mastectomy, including lymphedema.

A description of any annual deductibles and

coinsurance limitations applicable to such 

coverage.

Group health plans that 

provide coverage for 

mastectomy benefits.

WHCRA enrollment 

notice

(§713(a))

A copy of the WHCRA enrollment notice, or

A simplified disclosure providing notice of 

the availability of benefits for the four 

required coverages and information on how 

to obtain a detailed description.

Group health plans that 

provide coverage for 

mastectomy benefits.

WHCRA annual 

notice

(§713(a))

O

p

Potential opportunities currently available in 

the State in which the employee resides for 

premium assistance under CHIP or Medicaid 

for health coverage for the employee or the 

employee’s dependents.

Information on how to contact the State in

which the employee resides for additional 

information on premium assistance under 

these programs.

Description of special enrollment opportunity

if eligible for premium assistance under these 

programs.

Employers that maintain 

a group health plan in a

state with a CHIP or 

Medicaid program that 

provides for premium 

assistance for group 

health plan coverage 

must provide this notice 

to all employees.

Employer Notice 

regarding Premium 

Assistance under 

Medicaid or CHIP

(29 CFR 

2590.701(f)(3)(B)(i))

* Note, the employer 

(rather than the group 

health plan or issuer) is 

required to provide this 

notice.

M

p

S

133
 Type of Disclosure Applicability Content Summary 

Must include a description of the Michelle’s 

law provision for continued coverage during 

medically necessary leaves of absence.

All group health plans Michelle’s Law 

Enrollment Notice

Notice must provide the criteria for medically 

necessary determinations with respect to 

mental health/substance use disorder benefits.

All group health plans 

subject to MHPAEA

Mental Health Parity 

and Addiction Equity 

Act (MHPAEA) 

Criteria for Medically 

Necessary 

Determination Notice

Notice must provide the reason for any denial 

of reimbursement or payment for services 

with respect to mental health/substance use 

disorder benefits.

All group health plans 

subject to MHPAEA

MHPAEA Claims 

Denial Notice

A group health plan claiming MHPAEA’s 

increased cost exemption must notify plan 

participants and beneficiaries, the 

Department of Labor, and the appropriate 

State agencies of the plan’s exemption from 

the parity requirements. 

Group health plans 

claiming a MHPAEA 

cost exemption

MHPAEA Increased 

Cost Exemption

Notice must disclose that the plan is 

grandfathered and must include contact 

information. 

Group health plans 

claiming grandfathered 

status1

Grandfathered Plan 

Disclosure/Notice

1 Under the Affordable Care Act, generally, grandfathered plans are plans that were in existence, and in which at le

March 23, 2010. Grandfathered health plans are exempt from many but not all Affordable Care Act market reform

Affordable Care Act section of this publication or visit dol.gov/ebsa. 

134
 Type of Disclosure Applicability Content Summary 

A template that describes the benefits and 

coverage under the plan, and a uniform 

glossary defining statutorily and NAIC 

recommended terms. 

The SBC must include an internet address 

where an individual can review the Uniform 

Glossary as well as contact information for 

obtaining a paper copy. 

The required SBC template is available at 

dol.gov/ebsa/pdf/correctedsbctemplate2.pdf 

The Uniform Glossary is available at 

dol.gov/ebsa/pdf/SBCUniformGlossary.pdf. 

All group health plans Summary of Benefits 

and Coverage (SBC) 

and Uniform Glossary

If a plan makes a material modification in 

any of the plan terms that would affect the 

content of the SBC that is not reflected in the 

most recently provided SBC, the plan must 

provide notice of such change. This does not 

apply to changes that occur in connection 

with a renewal or reissuance. 

All group health plans Summary of Benefits 

and Coverage: Notice 

of Modification

N

6

m

If a plan requires a participant or beneficiary 

to designate a primary care provider, the plan 

must provide notice of the terms of the plan 

or coverage regarding designation of a 

primary care provider and participants’ rights 

to designate any participating primary care 

provider who is available to accept the 

participant; with respect to a child, to 

designate any participating physician who 

specializes in pediatrics; and that the plan 

may not require authorization or referral for 

OB/GYN care by a participating OB/GYN 

professional.

All non-grandfathered 

group health plans2

Notice Regarding 

Designation of a 

Primary Care 

Provider

S

a

m

N

S

o

a

p

t

r

e

T

G

r

2 Under the Affordable Care Act, generally, grandfathered plans are plans that were in existence, and in which at leas

March 23, 2010. Grandfathered health plans are exempt from many but not all Affordable Care Act market reforms. 

Affordable Care Act section of this publication or visit dol.gov/ebsa. 

135
 Type of Disclosure Applicability Content Summary 

Internal Claims and Appeals: Plans must 

provide notice of adverse benefit determination and notice of final internal adverse 

benefit determination. 

External Review: 

For plans following the independent 

review organization (IRO) process, the 

IRO must issue a notice of final external 

review decision. 

For plans following a State process, the 

state office administering external 

appeals process for health insurance 

companies must issue a notice of final 

external review decision. 

All non-grandfathered 

group health plans

Internal Claims and 

Appeals and External 

Review Notices

Plans must provide a description of the 

external review process in or attached to the 

Summary Plan Description, policy, certificate, or other evidence of coverage provided 

to participants, beneficiaries, or enrollees. 

All non-grandfathered 

group health plans

External Review 

Process Disclosure

T

p

S

e

e

Employers subject to the Fair Labor 

Standards Act must provide a written notice 

informing the employee of the existence of 

the Marketplace, the potential availability of 

a tax credit and that an employee may lose 

the employer contribution if the employee 

purchases a qualified health plan. 

Model notices are available at 

dol.gov/ebsa/healthreform/regulations/

coverageoptionsnotice.html

All employers subject to 

the Fair Labor Standards 

Act

Employer Notice to 

Employees of 

Coverage Options

F

t

t

F

n

c

f

N

e

Preexisting Condition Exclusion Notices and Certificates of Creditable Coverage

For plan years beginning on or after January 1, 2014, plans are no longer required to issue the general notice of preex

individual notice of period of preexisting condition exclusion. Plans are also no longer required to issue certificates o

31, 2014. These amendments were made because plans are prohibited from imposing preexisting condition exclusion

January 1, 2014. For more information see 79 Fed. Reg. 10296-317 (Feb. 24, 2014)

136
Appendix C:

Model Notices

137
Model Special Enrollment Notice

The following is language that group health plans may use as a guide when 

crafting the special enrollment notice:

If you are declining enrollment for yourself or your dependents 

(including your spouse) because of other health insurance or group health 

plan coverage, you may be able to enroll yourself and your dependents in 

this plan if you or your dependents lose eligibility for that other coverage

(or if the employer stops contributing toward your or your dependents’ 

other coverage). However, you must request enrollment within [insert 

“30 days” or any longer period that applies under the plan] after your 

or your dependents’ other coverage ends (or after the employer stops 

contributing toward the other coverage).

In addition, if you have a new dependent as a result of marriage, birth, 

adoption, or placement for adoption, you may be able to enroll yourself 

and your dependents. However, you must request enrollment within 

[insert “30 days” or any longer period that applies under the plan] after 

the marriage, birth, adoption, or placement for adoption.

To request special enrollment or obtain more information, contact [insert 

the name, title, telephone number, and any additional contact information 

of the appropriate plan representative]. 

138
Your health plan is committed to helping you achieve your best health. 

Rewards for participating in a wellness program are available to 

all employees. If you think you might be unable to meet a standard 

for a reward under this wellness program, you might qualify for an 

opportunity to earn the same reward by different means. Contact us at 

[insert contact information] and we will work with you (and, if you wish, 

with your doctor) to find a wellness program with the same reward that 

is right for you in light of your health status.

Model Wellness Program Disclosure

For group health plans offering a wellness program that requires an 

individual to satisfy a standard related to a health factor, the following is model 

language that may be used to satisfy the requirement that the availability of a 

reasonable alternative standard be disclosed:

139
Model Newborns’ Act Disclosure

The following is language that group health plans subject to the Newborns’ 

Act may use in their SPDs to describe the Federal requirements relating to 

hospital lengths of stay in connection with childbirth:

Group health plans and health insurance issuers generally may not, 

under Federal law, restrict benefits for any hospital length of stay in 

connection with childbirth for the mother or newborn child to less than 

48 hours following a vaginal delivery, or less than 96 hours following 

a cesarean section. However, Federal law generally does not prohibit 

the mother’s or newborn’s attending provider, after consulting with the 

mother, from discharging the mother or her newborn earlier than 48 

hours (or 96 hours as applicable). In any case, plans and issuers may not, 

under Federal law, require that a provider obtain authorization from the 

plan or the insurance issuer for prescribing a length of stay not in excess 

of 48 hours (or 96 hours).

Plans subject to State law requirements will need to prepare SPD statements 

describing any applicable State law.

140
Model WHCRA Enrollment Notice

The following is language that group health plans may use as a guide when 

crafting the WHCRA enrollment notice:

If you have had or are going to have a mastectomy, you may be entitled 

to certain benefits under the Women’s Health and Cancer Rights Act of 

1998 (WHCRA). For individuals receiving mastectomy-related benefits, 

coverage will be provided in a manner determined in consultation with 

the attending physician and the patient, for: 

 All stages of reconstruction of the breast on which the mastectomy 

was performed;

 Surgery and reconstruction of the other breast to produce a 

symmetrical appearance; 

 Prostheses; and

 Treatment of physical complications of the mastectomy, including 

lymphedema.

These benefits will be provided subject to the same deductibles and 

coinsurance applicable to other medical and surgical benefits provided 

under this plan. Therefore, the following deductibles and coinsurance 

apply: [insert deductibles and coinsurance applicable to these benefits].

If you would like more information on WHCRA benefits, call your plan 

administrator [insert phone number].

141
Model WHCRA Annual Notice

The following is language that group health plans may use as a guide when 

crafting the WHCRA annual notice:

Do you know that your plan, as required by the Women’s Health and 

Cancer Rights Act of 1998, provides benefits for mastectomy-related services including all stages of reconstruction and surgery to achieve symmetry between the breasts, prostheses, and complications resulting from 

a mastectomy, including lymphedema? Call your plan administrator at 

[insert phone number] for more information.

142
Model Notice of Adverse Benefit Determination – Revised as of July 3, 2014

OMB Control Number 1210-0144 (expires 07/31/2015) 

Date of Notice 

Name of Plan Telephone/Fax 

Address Website/Email Address 

This document contains important information that you should retain for your records. 

This document serves as notice of an adverse benefit determination. We have declined to 

provide benefits, in whole or in part, for the requested treatment or service described below. If 

you think this determination was made in error, you have the right to appeal (see the back of this 

page for information about your appeal rights). 

Case Details: 

Patient Name: ID Number: 

Address: (street, county, state, zip) 

Claim #: Date of Service:

Provider:

Reason for Denial (in whole or in part): 

Amt.

Charged

Allowed 

Amt.

Other

Insurance

Deductible Co-pay Coinsurance Other Amts. 

Not Covered

Amt. Paid 

YTD Credit toward Deductible: YTD Credit toward Out-of-Pocket Maximum: 

Description of service: Denial Codes: 

[If denial is not related to a specific claim, only name and ID number need to be included in the 

box. The reason for the denial would need to be clear in the narrative below.] 

Explanation of Basis for Determination:

If the claim is denied (in whole or in part) and there is more explanation for the basis of the 

denial, such as the definition of a plan or policy term, include that information here.

[Insert language assistance disclosure here, if applicable. 

SPANISH (Español): Para obtener asistencia en Español, llame al [insert telephone number]. 

TAGALOG (Tagalog): Kung kailangan ninyo ang tulong sa Tagalog tumawag sa [insert

telephone number]. 

CHINESE (୰ᩥ): ዴᯝ㟂せ୰ᩥhᖎຓ㸪実日ㇻ征᷒⎟䞩 [insert telephone number]ࠋ

NAVAJO (Dine): Dinek'ehgo shika at'ohwol ninisingo, kwiijigo holne' [insert telephone number]. ]

143
Model Notice of Adverse Benefit Determination – Revised as of July 3, 2014

Important Information about Your Appeal Rights 

What if I need help understanding this denial?

Contact us at [insert contact information] if you need 

assistance understanding this notice or our decision to 

deny you a service or coverage. 

What if I don’t agree with this decision? You have a 

right to appeal any decision not to provide or pay for 

an item or service (in whole or in part).

How do I file an appeal? [Complete the bottom of 

this page, make a copy, and send this document to 

{insert address}.] [or] [insert alternative instructions] 

See also the “Other resources to help you” section of 

this form for assistance filing a request for an appeal.

What if my situation is urgent? If your situation 

meets the definition of urgent under the law, your 

review will generally be conducted within 72 hours. 

Generally, an urgent situation is one in which your 

health may be in serious jeopardy or, in the opinion of 

your physician, you may experience pain that cannot 

be adequately controlled while you wait for a decision 

on your appeal. If you believe your situation is urgent, 

you may request an expedited appeal by following the 

instructions above for filing an internal appeal and also 

[insert instructions for filing request for simultaneous 

external review)]. 

Who may file an appeal? You or someone you name 

to act for you (your authorized representative) may file 

an appeal. [Insert information on how to designate an 

authorized representative.] 

Can I provide additional information about my 

claim? Yes, you may supply additional information. 

[Insert any applicable procedures for submission of 

additional information.] 

Can I request copies of information relevant to my 

claim? Yes, you may request copies (free of charge). 

If you think a coding error may have caused this claim 

to be denied, you have the right to have billing and 

diagnosis codes sent to you, as well. You can request 

copies of this information by contacting us at [insert 

contact information].

What happens next? If you appeal, we will review 

our decision and provide you with a written 

determination. If we continue to deny the payment, 

coverage, or service requested or you do not receive a 

timely decision, you may be able to request an external 

review of your claim by an independent third party, 

who will review the denial and issue a final decision. 

Other resources to help you: For questions about 

your rights, this notice, or for assistance, you can 

contact: [if coverage is group health plan coverage, 

insert: the Employee Benefits Security Administration 

at 1-866-444-EBSA (3272)] [and/or] [if coverage is 

insured, insert State Department of Insurance contact 

information]. [Insert, if applicable in your state: 

Additionally, a consumer assistance program can help 

you file your appeal. Contact [insert contact 

information].]

Appeal Filing Form

NAME OF PERSON FILING APPEAL: ____________________________ 

Circle one: Covered person Patient Authorized Representative 

Contact information of person filing appeal (if different from patient) 

Address: _________________ Daytime phone:________________ Email:_______________ 

If person filing appeal is other than patient, patient must indicate authorization by signing here: 

_______________________________________________ 

Are you requesting an urgent appeal? Yes No 

Briefly describe why you disagree with this decision (you may attach additional information, such as a 

physician’s letter, bills, medical records, or other documents to support your claim):

______________________________________________________________________________

______________________________________________________________________________ 

Send this form and your denial notice to: [Insert name and contact information] 

Be certain to keep copies of this form, your denial notice, and all documents and correspondence related 

to this claim.

144
Model Notice of Final Internal Adverse Benefit Determination – Revised as of July 3, 2014

OMB Control Number 1210-0144 (expires 07/31/2015) 

Date of Notice 

Name of Plan Telephone/Fax 

Address Website/Email Address 

This document contains important information that you should retain for your records. 

This document serves as notice of a final internal adverse benefit determination. We have declined to 

provide benefits, in whole or in part, for the requested treatment or service described below. If you 

think this determination was made in error, you may have the right to appeal (see the back of this page 

for information about your appeal rights). 

Internal Appeal Case Details:

Patient Name: ID Number: 

Address: (street, county, state, zip) 

Claim #: Date of Service:

Provider:

Reason for Upholding Denial (in whole or in part): 

Amt.

Charged

Allowed 

Amt.

Other

Insurance

Deductible Co-pay Coinsurance Other Amts. 

Not Covered

Amt. Paid 

YTD Credit toward Deductible: YTD Credit toward Out-of-Pocket Maximum: 

Description of Service: Denial Codes: 

[If denial is not related to a specific claim, only name and ID number need to be included in the box.

The reason for the denial would need to be clear in the narrative below.] 

Background Information: Describe facts of the case including type of appeal and date appeal filed.

Final Internal Adverse Benefit Determination: State that adverse benefit determination has been 

upheld. List all documents and statements that were reviewed to make this final internal adverse 

benefit determination.

Findings: Discuss the reason or reasons for the final internal adverse benefit determination.

[Insert language assistance disclosure here, if applicable. 

SPANISH (Español): Para obtener asistencia en Español, llame al [insert telephone number]. 

TAGALOG (Tagalog): Kung kailangan ninyo ang tulong sa Tagalog tumawag sa [insert telephone

number]. 

CHINESE (୰ᩥ): ዴᯝ㟂せ୰ᩥhᖎຓ㸪実日ㇻ征᷒⎟䞩 [insert telephone number]ࠋ

NAVAJO (Dine): Dinek'ehgo shika at'ohwol ninisingo, kwiijigo holne' [insert telephone number]. ]

145
Model Notice of Final Internal Adverse Benefit Determination – Revised as of July 3, 2014

Important Information about Your Rights to External Review 

What if I need help understanding this denial?

Contact us [insert contact information] if you need 

assistance understanding this notice or our decision 

to deny you a service or coverage. 

What if I don’t agree with this decision? For

certain types of claims, you are entitled to request 

an independent, external review of our decision. 

Contact [insert external review contact information] 

with any questions on your rights to external 

review. [For insured coverage, insert: If your claim 

is not eligible for independent external review but 

you still disagree with the denial, your state 

insurance regulator may be able to help to resolve 

the dispute.] See the “Other resources section” of 

this form for help filing a request for external 

review.

How do I file a request for external review?

Complete the bottom of this page, make a copy, and 

send this document to {insert address}.] [or] [insert 

alternative instructions.] See also the “Other 

resources to help you” section of this form for 

assistance filing a request for external review.

What if my situation is urgent? If your situation 

meets the definition of urgent under the law, the 

external review of your claim will be conducted as 

expeditiously as possible. Generally, an urgent 

situation is one in which your health may be in 

serious jeopardy or, in the opinion of your 

physician, you may experience pain that cannot be 

adequately controlled while you wait for a decision 

on the external review of your claim. If you believe 

your situation is urgent, you may request an 

expedited external review by [insert instructions to 

begin the process (such as by phone, fax, electronic 

submission, etc.)]. 

Who may file a request for external review? 

You or someone you name to act for you (your 

authorized representative) may file a request for 

external review. [Insert information on how to 

designate an authorized representative.] 

Can I provide additional information about my 

claim? Yes, once your external review is initiated, 

you will receive instructions on how to supply 

additional information.

Can I request copies of information relevant to 

my claim? Yes, you may request copies (free of 

charge) by contacting us at [insert contact 

information].

What happens next? If you request an external 

review, an independent organization will review our 

decision and provide you with a written 

determination. If this organization decides to 

overturn our decision, we will provide coverage or 

payment for your health care item or service. 

Other resources to help you: For questions about 

your rights, this notice, or for assistance, you can 

contact: [if coverage is group health plan coverage, 

insert: the Employee Benefits Security 

Administration at 1-866-444-EBSA (3272)] 

[and/or] [if coverage is insured, insert State 

Department of Insurance contact information]. 

[Insert, if applicable in your state: Additionally, a 

consumer assistance program can help you file your 

appeal. Contact:[insert contact information].]

NAME OF PERSON FILING REQUEST FOR EXTERNAL REVIEW: _________________________ 

Circle one: Covered person Patient Authorized Representative 

Contact information of person filing request for external review (if different from patient) 

Address: _________________ Daytime phone:________________ Email:_______________ 

If person filing request for external review is other than patient, patient must indicate authorization by 

signing here: _______________________________________________

Are you requesting an urgent review? Yes No 

Briefly describe why you disagree with this decision (you may attach additional information, such as a 

physician’s letter, bills, medical records, or other documents to support your claim):

______________________________________________________________________________

______________________________________________________________________________ 

Send this form and your denial notice to: [Insert name and contact information] 

Be certain to keep copies of this form, your denial notice, and all documents and correspondence related 

to this claim.

146
OMB Control Number 1210-0144 (expires 07/31/2015) 

Model Notice of Final External Review Decision – Revised July 3, 2014

Date of Notice 

Name of Plan Telephone/Fax 

Address Website/Email Address 

This document contains important information that you should retain for your records. 

This document serves as notice of a final external review decision. We have 

[upheld/overturned/modified] the denial of your request for the provision of, or payment for, a 

health care service or course of treatment. 

Historical Case Details:

Patient Name: ID Number: 

Address: (street, county, state, zip) 

Claim #: Date of Service:

Provider:

Reason for Denial (in whole or in part): 

Amt.

Charged

Allowed 

Amt.

Other

Insurance

Deductible Co-pay Coinsurance Other Amts. 

Not Covered

Amt. Paid 

YTD Credit toward Deductible: YTD Credit toward Out-of-Pocket Maximum: 

Description of Service: Denial Codes: 

 [If denial is not related to a specific claim, only name and ID number need to be included in the 

box. The reason for the denial would need to be clear in the narrative below.] 

Background Information: Describe facts of the case including type of appeal, date appeal 

filed, date appeal was received by IRO and date IRO decision was made. 

Final External Review Decision: State decision. List all documents and statements that were 

reviewed to make this final external review decision.

Findings: Discuss the principal reason or reasons for IRO decision, including the rationale and 

any evidence-based standards or coverage provisions that were relied on in making this 

decision.

147
Model Notice of Final External Review Decision – Revised July 3, 2014

Important Information about Your Appeal Rights 

What if I need help understanding this decision?

Contact us [insert IRO contact information] if you need assistance understanding this notice.

What happens now? If we have overturned the denial, your plan or health insurance issuer will 

now provide service or payment. 

If we have upheld the denial, there is no further review available under the appeals process.

However, you may have other remedies available under State or Federal law, such as filing a 

lawsuit. 

Other resources to help you: For questions about your appeal rights, this notice, or for 

assistance, you can contact [if coverage is group health plan coverage, insert: the Employee Benefits 

Security Administration at 1-866-444-EBSA (3272)] [and/or] [if coverage is insured, insert State 

Department of Insurance contact information]. [Insert, if applicable in your state: Additionally, you can 

contact your consumer assistance program at [insert contact information].]

148
Model Notice for Grandfathered 

Health Plans

To maintain status as a grandfathered health plan, a plan or health 

insurance coverage must include a statement, in any plan materials provided to 

a participant or beneficiary describing the benefits provided under the plan or 

health insurance coverage, that the plan or coverage believes it is a grandfathered 

health plan within the meaning of section 1251 of the Patient Protection and 

Affordable Care Act and must provide contact information for questions and 

complaints. 

The following model language can be used to satisfy this disclosure 

requirement:

This [group health plan or health insurance issuer] believes this 

[plan or coverage] is a “grandfathered health plan” under the Patient 

Protection and Affordable Care Act (the Affordable Care Act). As 

permitted by the Affordable Care Act, a grandfathered health plan can 

preserve certain basic health coverage that was already in effect when 

that law was enacted. Being a grandfathered health plan means that 

your [plan or policy] may not include certain consumer protections 

of the Affordable Care Act that apply to other plans, for example, the 

requirement for the provision of preventive health services without 

any cost sharing. However, grandfathered health plans must comply 

with certain other consumer protections in the Affordable Care Act, 

for example, the elimination of lifetime limits on benefits. 

Questions regarding which protections apply and which protections 

do not apply to a grandfathered health plan and what might cause a 

plan to change from grandfathered health plan status can be directed 

to the plan administrator at [insert contact information]. [For ERISA 

plans, insert: You may also contact the Employee Benefits Security 

Administration, U.S. Department of Labor at 1-866-444-3272 or 

dol.gov/ebsa/healthreform. This Website has a table summarizing 

which protections do and do not apply to grandfathered health 

plans.] [For individual market policies and nonfederal governmental 

plans, insert: You may also contact the U.S. Department of Health and 

Human Services at healthreform.gov.] 

149
Patient Protection Model Disclosure

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].

150

September 2014