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Model Exchange Notices and Revised COBRA Election Notice Issued

Under the Affordable Care Act (“ACA”), beginning January 1, 2014, individuals and small businesses will have access to health insurance through a public “exchange” or as it is now being referred to, a “Health Insurance Marketplace” (“Marketplace”). The ACA requires employers to notify employees of coverage options available through the Marketplace. Originally, this notice was required to be sent by March 1, 2013, but the Department of Labor (“DOL”) recently announced a delay of the March deadline, and indicated its intent to coordinate the timing for distribution of notices with the open enrollment period for the Marketplace this fall.

Apparently in response to several requests from employers for immediate guidance, the DOL has now issued temporary guidance on the Marketplace notices and has posted model notices on its website. One version is for employers who do not offer health plan coverage to their employees; the other is for employers who do offer such coverage. In both cases, employers will have to complete Part B of the notice by providing specific information regarding their group health plan coverage (or lack thereof).

According to the guidance in Technical Release 2013-02, employers must distribute the notices to existing employees no later than October 1, 2013. However, employers are permitted to rely upon the guidance now if they wish to provide notice to their employees earlier. Also as of October 1, 2013, employers must begin providing the notice to new employees.  Those notices must be provided within 14 days of an employee’s date of hire. The notice must be provided to each employee, regardless of plan enrollment status (if applicable) or of part-time or full-time status. Employers may either send the notices by first-class mail or use electronic delivery methods that satisfy the DOL’s safe harbor requirements applicable to electronic disclosures.

In connection with the new Marketplace notices, the DOL also updated its model COBRA election notice. The new COBRA election notice adds references to coverage alternatives (in lieu of COBRA) that may be available through the Marketplace. It also modifies the language concerning pre-existing condition limitations (which will be illegal for plan years beginning on and after January 1, 2014). Health plan administrators may want to begin using this new COBRA election form.