On September 8, 2015, the Centers for Medicare & Medicaid Services (CMS), an agency within the Department of Health and Human Services (HHS), issued FAQs addressing requirements for summary of benefits and coverage (SBC) under the Affordable Care Act (ACA) (see Legal Update, Final SBC Rules Apply Beginning in Fall 2015). The FAQs include an extension to the otherwise applicable deadlines by which insurers must provide a web address in SBCs at which group certificates of coverage can be obtained and reviewed. The FAQs also address SBC rules for health coverage that is no longer offered for business (known as a closed block of business).

(The Departments of Labor and Treasury, which also have been involved in implementing the ACA's SBC requirement, were consulted regarding the HHS/CMS guidance included in these FAQs. However, because the guidance applies only to health insurers, it was issued only by HHS/CMS.)

Under the SBC final regulations, health insurers must include in each SBC a web address at which participants and beneficiaries can obtain and review copies of a plan's group certificate of coverage (see Legal Update, Final SBC Rules Apply Beginning in Fall 2015: SBC Content, Including Safe Harbor for MEC and MV). Under the final regulations, this web address must be included beginning the first day of the first open enrollment period beginning on or after September 1, 2015, for SBCs provided to individuals who enroll or re-enroll in a group health plan through open enrollment. The regulations include additional applicability dates, including rules for individuals who enroll other than through open enrollment (see Practice Note, Summaries of Benefits and Coverage under the ACA: Applicability Dates of 2015 Regulations).

According to CMS, some insurers are having difficulty making group certificates of coverage accessible by the applicability dates because:

As a result, the HHS will not take enforcement action against an insurer that cannot meet the online accessibility requirement by the applicability dates, if it makes group certificate of coverage documents accessible online by November 1, 2015. The extension is limited in the following ways:

By way of reminder, CMS notes in the FAQs that insurers may satisfy the SBC web address requirement regarding plan sponsors that are shopping for coverage by posting a sample group certificate of coverage for each applicable product. After the actual certificate of coverage is executed, it must be easily available to plan sponsors and participants and beneficiaries on an internet web page (see Practice Note, Summaries of Benefits and Coverage under the ACA: Use of Sample Group Certificates of Coverage Is Allowed in Some Cases).

The SBC final regulations include enforcement relief for insurance products that are no longer being offered for purchase (closed blocks of business), provided that certain requirements are met. Closed blocks of business need not provide an SBC if they satisfy the requirements of a safe harbor. In an FAQ, CMS addresses whether health insurers must provide a web address for group certificate of coverage documents for closed blocks of business that do not satisfy the closed blocks of business safe harbor.

According to CMS, closed blocks of business that do not satisfy the safe harbor must continue to comply with the SBC requirements, including providing SBCs to plan sponsors and individuals under the timeframes required under the SBC final regulations. However, HHS will not take enforcement action against an insurer of a closed block of business that does not meet the enforcement safe harbor if the insurer limits access to the group certificate of coverage documents to:

This exception is intended to avoid confusion that might result if individuals who want to obtain coverage access group certificate of coverage documents for a closed block of business in which they are not eligible to enroll.

With open enrollment season approaching, employers will want to note the limited extension contained in this HHS/CMS guidance, in the event they receive questions regarding accessing group certificates of coverage from participants and beneficiaries who enroll (or re-enroll) through open enrollment. As HHS and CMS are careful to emphasize, however, this enforcement relief does not affect other aspects of SBC compliance.