Many companies that sponsor ERISA welfare benefit plans are currently undergoing their open enrollment process and issuing related participant communications. To assist with that process, this article highlights certain participant disclosure requirements and provides an Automatic Participant Disclosures Checklist for use during open enrollment and throughout the plan year.

The Employee Retirement Income Security Act of 1974 (ERISA) sets forth certain ongoing disclosure and reporting requirements for welfare benefit plans. As discussed in more detail below, a number of disclosures are required to be provided automatically at the time of eligibility/enrollment or periodically thereafter for existing welfare plans. These automatic disclosures include, but are not limited to:

1. Summary Plan Description (SPD) – ERISA requires plan sponsors to distribute SPDs to inform participants of their benefits, rights, and obligations under the plan and describe how the plan operates. Changes to the SPD are communicated to participants either through a summary of material modifications (SMM) or the issuance of an updated SPD.

• Initial Disclosure Requirement(s) – The current SPD must be provided to each participant within 90 days of enrollment in the plan.

• Annual (or Other Periodic) Disclosure Requirement(s) – An SMM (or updated SPD) must be provided to all participants within 210 days of the end of the plan year in which the change was adopted.

2. Summary Annual Report (SAR) – ERISA requires a summary, in narrative form, of the Form 5500 Annual Return/Report of Employee Benefit Plan most recently filed for the plan (if applicable).

• Initial Disclosure Requirement(s) – N/A

• Annual (or Other Periodic) Disclosure Requirement(s) – The SAR must be provided to all plan participants within 9 months after the end of the plan year (or 2 months after the due date of the Form 5500 with an approved extension).

3. General COBRA Notice – Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), notice must be given to participants and any covered family members that describes their right to purchase a temporary extension of group health plan coverage when coverage is lost because of certain "qualifying events" under COBRA.

• Initial Disclosure Requirement(s) – A general COBRA notice must be provided to each covered employee and covered spouse no more than 90 days after group health plan coverage begins.

• Annual (or Other Periodic) Disclosure Requirement(s) – N/A

4. HIPAA Notice of Privacy Practices – Under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), a group health plan (or an insurer) subject to the HIPAA privacy rules must provide this notice describing the uses and disclosures of protected health information (PHI) and the individual's rights and the plan's (or insurer's) duties with respect to that PHI.

• Initial Disclosure Requirement(s) – This notice must be provided to new enrollees in the plan, at the time of enrollment. (Notice to the covered participant is deemed to provide notice to his or her covered dependents.)

• Annual (or Other Periodic) Disclosure Requirement(s) – At least once every 3 years, notice must be given to all participants of the availability of the Notice of Privacy Practices and how to obtain it.

5. Notice of Creditable or Non-Creditable Prescription Drug Coverage – This notice describes to Medicare Part D eligible individuals whether their prescription drug coverage under the plan constitutes "creditable coverage" under Medicare Part D rules to help them determine whether to enroll in Part D coverage during the annual Medicare Part D election period (October 15 to December 7, for coverage generally effective January 1) or their initial Medicare Part D enrollment period.

• Initial Disclosure Requirement(s) – This notice must be provided to each Medicare Part D eligible individual who joins (or seeks to join) the plan during the plan year, prior to his or her prescription drug coverage effective date under the plan.

• Annual (or Other Periodic) Disclosure Requirement(s) – Provide to Medicare Part D eligible individuals each year, prior to October 15, the start of the Medicare annual election period.

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