DOL Provides Guidance On Patient Protection And Affordable Care Act Of 2010

DOL Provides Guidance On Patient Protection And Affordable Care Act Of 2010

As we reported previously, the Patient Protection and Affordable Care Act (the “Act”), which was signed into law on March 23, 2010, includes an amendment to the Fair Labor Standards Act that requires all employers to provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth.” The Department of Labor (“DOL”) recently issued a Fact Sheet which outlines the DOL’s interpretation of the obligations imposed by the Act with regard to such break time. The highlights of the fact sheet are set forth below:

• Only employees who are not exempt from the FLSA’s overtime pay requirements are entitled to break time to express breast milk;

• Employers with fewer than 50 employees (regardless of work site) are not subject to the FLSA nursing mother break time requirements if compliance would impose an undue hardship upon the employer; undue hardship will be determined by the difficulty and expense of compliance in comparison to the size, financial resources, nature, and structure of the employer’s business;

• Employers need not compensate for break time an employee takes to express milk so long as the employee is completely relieved from duty during the break; however, where an employer already provides compensated breaks, an employee using that time to express milk must be compensated as other employees would be compensated;

• Reasonable break time must be provided for 1-year after the child’s birth and the “reasonableness” of frequency and duration will vary by case;

• Employers are required to make available, when needed by the nursing mother, space that is shielded from view and free from intrusion by co-workers or the public for such break time; private bathrooms are not permissible locations under the Act;

• The FLSA requirement of break time for nursing mothers to express breast milk does not pre-empt state laws that provide greater protection (i.e. requiring paid break time, requiring break time for exempt employees, and requiring the provision of break time for greater than 1-year).

In addition to providing the foregoing interpretive guidance, the DOL’s Employee Benefits Security Administration has also issued several model notices to help employers and other health plan issuers comply with their obligations to inform health care plan participants of their patient protection rights, plan lifetime limits, grandfathered status of the health plans, and dependent coverage. A brief summary of the information that must be provided to plan participants, with links to the model notices issued by the DOL, is provided below:

• Patient Protection: Health care plan participants must be notified 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; and (2) obtain obstetrical or gynecological care without prior authorization. Such notice must be provided whenever a summary of benefits – such as a summary plan description – is provided to the participant but no later than the first day of the first plan year beginning on or after September 23, 2010. The DOL's Patient Protection Model Disclosure may be used to provide this required notice.

• No Lifetime Limits: Health plans and issuers are now required to give plan participants written notice that lifetime limits on benefits no longer apply, and that an individual to whom the limits had applied, if still covered, will again be eligible for benefits under the plan. Individuals whose coverage ended by reason of the lifetime limit and who are eligible for, but not enrolled in, the plan or any benefit package under the plan must be given notice of their opportunity to enroll in the plan and 30-days from the time of notice to enroll. The notice and enrollment opportunity must be provided not later than the first day of the first plan year beginning on or after September 23, 2010. The DOL's Model Language that the Lifetime Limits No Longer Apply may be used to provide this required notice.

• Grandfathered Plans: For health plans to maintain their grandfathered status, a plan must include a statement, in any plan materials provided to plan participants or beneficiaries describing the benefits under the plan, that the plan believes it is a grandfathered health plan under the Act and must provide contact information for question and complaints. The DOL's Model Language for Grandfathered Health Plans may be used to satisfy this requirement.

• Dependent Coverage Extension: In May, the DOL issued interim final regulations providing for the extension of dependent health coverage to adult children up to age 26. Plan participants must be given notice by the first day of the first plan year beginning on or after September 23, 2010, that they have the opportunity to enroll their eligible adult children. The DOL's Model Language for Notice of Opportunity to Enroll Adult Children may be used to satisfy this required notice.