HIPAA Special Enrollment Rights Notice

Summary

Employers should provide this HIPAA Special Enrollment Rights Notice to employees who become eligible to participate in its group health plan subject to the Employee Retirement Income Security Act (ERISA) to notify them of their special enrollment rights under the Health Insurance Portability and Accountability Act of 1996 (HIPAA). This template includes practical guidance, drafting notes, and an optional clause. The HIPAA special enrollment rules require employers to permit eligible employees and their dependents to enroll in their group health plans following these specified occasions (enabling an enrollment opportunity outside the typical open enrollment period): • The loss of other health insurance covering the employee or his or her spouse or other dependent • The employee's marriage, or the birth, adoption, or placement for adoption of a dependent (including acquiring a new dependent child by marriage) • Certain changes in the participant's or the participant's dependents' eligibility for premium assistance under state Medicaid or its Children's Health Insurance Program (CHIP) ERISA § 701(f) (29 U.S.C. 1181(f)); 29 C.F.R. § 2590.701-6; I.R.C. § 9801; 26 C.F.R. § 54.9801-6. Employers are required to provide employees notice of their HIPAA special enrollment rights on or before the date the employee is first offered the opportunity to enroll in the group health plan. 29 C.F.R. § 2590.701-6(c). The notice may be provided separately or may be incorporated into a plan's summary plan description (SPD), provided the timing requirement for notice delivery is met. Dep't of Labor Health Coverage Portability (HIPAA) Compliance FAQs, Q&A-3 Due to an anticipated increase in the number individuals losing state-based Medicaid or Children's Health Insurance Program (CHIP) eligibility following the expiration of special COVID-19 relief rules, the Centers for Medicare and Medicaid Services (CMS) has requested that employers voluntarily extend the special enrollment period for such individuals to enter an employer group health plan beyond the statutory minimum of 60 days following their loss of eligibility. See CMS Letter (July 20, 2023). Employers adopting this change should modify Section of the template accordingly, furnish a summary of material modifications to participants and beneficiaries regarding the change, and amend the plan document, if necessary. For a full listing of key content that can be used by in-house counsel to develop, revise, and implement a company's employee and third-party-related policies, see In-House Company Policies Resource Kit. For a full listing of key content covering HIPAA considerations, see HIPAA Resource Kit. For more on health information privacy and security, see Health Information Privacy and Security Resource Kit. For a discussion regarding HIPAA special enrollment rights, including a discussion on the HIPAA Special Enrollment Notice, see HIPAA Special Enrollment Rights. For a template to be used annually to notify employees of potential opportunities then currently available in the state in which the employee resides for Medicaid or Children's Health Insurance Program (CHIP) premium assistance for the purchase of coverage of the employee or the employee's dependents under its group health plan (which includes a statement concerning their special enrollment rights upon a change in eligibility or premium assistance, see Medicaid and Children's Health Insurance Program Notice (CHIP). For additional references to required notices in ERISA health and welfare plans, see Participant Disclosure Checklist (Health and Welfare Benefit Plans).