Form M-1 Annual Report for Multiple Employer Welfare Arrangements

U.S. Department of Labor

Employee Benefits Security Administration
Room N5511
200 Constitution Avenue, NW
Washington, DC 20210
P-450

2010

Form M-1
Report for Multiple
Employer Welfare
Arrangements (MEWAs)
and Certain Entities
Claiming Exception (ECEs)
This package contains the following
form and related instructions:
Form M-1
Instructions
Self-Compliance Tool

Web-based filing available!
Enjoy these additional benefits not available
for paper filings:
Greater Accuracy
• Electronic-filing data is checked for errors to improve
accuracy
• Built-in error checks mean fewer corrections and
faster processing of your return
Increased Security
• Encryption of submitted data assures a high level of
security
• Assigned Personal Identification Numbers (PINs) and
secure filing Web site provide protected and secure
access
• Direct processing reduces the manual handling of your
return
Automated
• Web site submission occurs immediately
• Eliminate postage expenses
Participation is easy!
• For information on Form M-1 electronic filing,
please visit www.askebsa.dol.gov/mewa

Package Form M-1

If you have additional questions about the Form M-1 filing requirement or the ERISA health coverage
requirements, there’s help for you.
Form M-1 Filing Requirement
(1) For questions on completing the Form M-1, contact the Employee Benefits Security
Administration’s (EBSA’s) Form M-1 help desk at 202-693-8360.
(2) For inquiries regarding electronic filing capability, contact the EBSA computer help desk at
202-693-8600.
(3) For inquiries regarding the Form M-1 filing requirement, contact the Office of Health Plan
Standards and Compliance Assistance at 202-693-8335.
ERISA Health Coverage Requirements
(1) For questions about ERISA’s health coverage requirements, contact EBSA by calling toll-free
1-866-444-3272 or electronically at www.askebsa.dol.gov.
(2) EBSA’s Health Benefits Education Campaign offers compliance assistance seminars across the
country addressing a wide variety of health care issues, including HIPAA, COBRA, and the benefit
claims procedure regulation. For information on upcoming compliance assistance seminars, go to
www.dol.gov/ebsa/hbec.html.
The Department of Labor’s EBSA has many helpful compliance assistance publications on ERISA’s
health benefits requirements, including:
•
•
•

MEWAs: Multiple Employer Welfare Arrangements under the Employee Retirement Income
Security Act: A Guide to Federal and State Regulation
Health Benefits Coverage Under Federal Law
An Employer’s Guide to Group Health Continuation Coverage Under COBRA

EBSA also has many publications to assist participants and beneficiaries. EBSA’s publications are
available on the Internet at www.dol.gov/ebsa or by calling toll-free 1-866-444-3272.

2010 Form M-1
MEWA/ECE Form
This Form is Open to Public
Inspection

PART I

Report for Multiple Employer Welfare
Arrangements (MEWAs) and
Certain Entities Claiming Exception (ECEs)

OMB No. 1210-0116

This report is required to be filed under section 101(g) of the
Employee Retirement Income Security Act of 1974 and 29 CFR 2520.101-2.
See separate instructions before completing this form.

Department of Labor
Employee Benefits
Security Administration

REPORT IDENTIFICATION INFORMATION

Complete either Item A or Item B (as applicable) and Item C.
A If this is an annual report, specify whether it is for:
(1)  The 2010 calendar year; or
(2)  The fiscal year beginning

mm/dd/yyyy

B If this is a special filing, specify whether it is:

(1)  A 90-day origination report;

(2)  An amended report; or
(3)  A request for an extension.

.

mm/dd/yyyy

and ending

C If this is a final report, check here

PART II
1a



MEWA OR ECE IDENTIFICATION INFORMATION

Name and address of the MEWA or ECE

1b Telephone number of the MEWA or ECE
1c Employer Identification Number (EIN)
1d Plan Number (PN)

2a

Name and address of the administrator of the MEWA or ECE

2b Telephone number of the administrator
2c EIN
2d E-mail address of the administrator

3a

Name and address of the entity sponsoring the MEWA or ECE

3b Telephone number of the sponsor
3c EIN

PART III

REGISTRATION INFORMATION

4 Specify the most recent date the MEWA or ECE was originated
5 Complete the following chart. (See Instructions for Item 5)
5a

5b

Enter all States
where the entity
provides
coverage.

Is the entity a
licensed health
insurance issuer
in this State?

5c

5d

5e

5f

If you answer
“no” to 5b, is
the entity fully
insured?

If you answer “yes” Does the entity
purchase stopto 5d, enter the
name of the insurer loss coverage?
and its NAIC
number.

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

 Yes  No

If you answer
“yes” to 5b,
list any NAIC
number.

For Paperwork Reduction Act Notice, see page 7 of the instructions.

5g
If you answer “yes”
to 5f, enter the
name of the stoploss insurer and its
NAIC number.

Form M-1

Form M-1

Page 2

6 Of the States identified in Item 5a, list those States in which the MEWA or ECE conducted 20 percent or more of its business (based
on the number of participants receiving coverage for medical care under the MEWA or ECE).

7 Total number of participants covered under the MEWA or ECE ..............................................................

PART IV

INFORMATION FOR COMPLIANCE WITH PART 7 OF ERISA

8a Has the MEWA or ECE been involved in any litigation or enforcement proceeding in which noncompliance
with any provision of Part 7 of Subtitle B of Title I (Part 7) of ERISA was alleged? Answer for the year to
which this filing applies and any time since then up to the date of completing this form. Answer “Yes” for
any State or Federal litigation or enforcement proceeding (including any administrative proceeding), whether
the allegation concerns a provision under Part 7 of ERISA, a corresponding provision under the Internal
Revenue Code or Public Health Service Act, a breach of any duty under Title I of ERISA if the underlying
violation relates to a requirement under Part 7 of ERISA, or a breach of a contractual obligation if the contract
provision relates to a requirement under Part 7 of ERISA. (The instructions to this form contain additional
information that may be helpful in answering this question.)..........................................................................

 Yes  No

8b If you answered “Yes” to Item 8a, identify each litigation or enforcement proceeding. With respect to each, include (if applicable):
(1) the case number, (2) the date, (3) the nature of the proceedings, (4) the court, (5) all parties (for example, plaintiffs and
defendants or petitioners and respondents), and (6) the disposition. You may answer this question by attaching a copy of the
complaint with the name of the MEWA or ECE, the disposition of the case, and the phrase “Item 8b Attachment,” noted in the upper
right corner.
9 Complete the following. (Note: The instructions to this form contain a Self-Compliance Tool which may be helpful in completing this
item. Please read the instructions carefully before answering the following questions.)
9a Is the coverage provided by the MEWA or ECE in compliance with the portability provisions of
the Health Insurance Portability and Accountability Act of 1996 and the Department of Labor’s
(Department’s) regulations issued thereunder, including the additional special enrollment
provisions added by the Children’s Health Insurance Program Reauthorization Act of 2009
(CHIPRA)? (See Part I of the Self-Compliance Tool)..................................................................

 Yes

 No

 N/A

9b Is the coverage provided by the MEWA or ECE in compliance with the mental health parity
provisions of the Mental Health Parity Act of 1996 and the Mental Health Parity and Addiction
Equity Act of 2008 and the Department’s regulations issued thereunder?
(See Part II of the Self-Compliance Tool)....................................................................................

 Yes

 No

 N/A

9c Is the coverage provided by the MEWA or ECE in compliance with the Newborns' and Mothers'
Health Protection Act of 1996 and the Department's regulations issued thereunder?
(See Part III of the Self-Compliance Tool)...................................................................................

 Yes

 No

 N/A

9d Is the coverage provided by the MEWA or ECE in compliance with the Women’s Health
and Cancer Rights Act of 1998? (See Part IV of the Self-Compliance Tool)..............................

 Yes

 No

 N/A

9e Is the coverage provided by the MEWA or ECE in compliance with the Genetic Information
Nondiscrimination Act of 2008 and the Department’s regulations issued thereunder?
(See Part V of the Self-Compliance Tool)....................................................................................

 Yes

 No

 N/A

9f Is the coverage provided by the MEWA or ECE in compliance with Michelle’s Law?
(See Part VI of the Self-Compliance Tool)...................................................................................

 Yes

 No

 N/A

IF MORE SPACE IS REQUIRED FOR ANY ITEM, YOU MAY ATTACH ADDITIONAL PAGES.
(SEE INSTRUCTIONS SECTION 2.4)
Caution: Penalties may apply in the case of a late or incomplete filing of this report.
Under penalty of perjury and other penalties set forth in the instructions, I declare that I have examined this report, including any accompanying attachments, and to the best of my knowledge and belief, it is true and correct. Under penalty of perjury and other penalties set forth in the instructions, I also declare that, unless this is an extension request, this report is complete.
Signature of administrator
Type or print name of administrator

Date

Department of Labor
Employee Benefits Security Administration

Year 2010
Instructions for Form M-1
Report for Multiple Employer Welfare Arrangements (MEWAs) and Certain
Entities Claiming Exception (ECEs)
ERISA refers to the Employee Retirement Income Security Act of 1974, as amended

Notes on the 2010 Form M-1
• This year’s Form M-1 is generally identical to the 2009
Form M-1, except that a few changes were made to
update the Part 7 compliance questions to reflect the
current provisions of Part 7 that were effective in 2010.
• The year 2010 Form M-1 is due March 1, 2011, with an
extension until May 2, 2011, available.

Introduction

This form is required to be filed under sections 101(g) and
734 of ERISA and 29 CFR 2520.101-2.
The Department of Labor, EBSA, is committed to working
together with administrators to help them comply with this
filing requirement. Additional copies of the Form M-1 are
available by calling the EBSA toll-free hotline at
1-866-444-3272 and on the Internet at: www.dol.gov/
ebsa. If you have any questions (such as whether you are
required to file this report) or if you need any assistance
in completing this report, please call the EBSA Form M-1
help desk at (202) 693-8360.
All Form M-1 reports are subject to a computerized review.
It is in the filer’s best interest that the responses accurately
reflect the circumstances they were designed to report.

Contents

The instructions are divided into three main sections.

Section 1

Page

1.1 Definitions....................................................................2
1.2 Who Must File..............................................................3
1.3 When to File................................................................4
1.4 How to File...................................................................4
1.5 Penalties......................................................................4

Section 2

2.1 Year to be Reported.....................................................5
2.2 90-Day Origination Report...........................................5
2.3 Signature and Date......................................................5
2.4 Attaching Additional Pages..........................................5
2.5 Amended Report.........................................................5

Section 3

3.1 Line-By-Line Instructions.............................................5
3.2 Self-Compliance Tool...................................................7
Paperwork Reduction Act Notice........................................7

SECTION 1
1.1 Definitions
“Administrator”
For purposes of this report, the “administrator” is the
person specifically designated by the terms of the MEWA
or ECE. However, if the MEWA or ECE is a group health
plan and the administrator is not so designated, the “plan
sponsor” is the administrator. (“Plan sponsor” is defined
in ERISA section 3(16)(B) as (i) the employer in the case
of an employee benefit plan established or maintained by
a single employer; (ii) the employee organization in the
case of a plan established or maintained by an employee
organization; or (iii) in the case of a plan established or
maintained by two or more employers or jointly by one or
more employers and one or more employee organizations,
the association, committee, joint board of trustees, or
other similar group of representatives of the parties who
establish or maintain the plan.) Moreover, in the case of a
MEWA or ECE for which an administrator is not designated
and a plan sponsor cannot be identified, the administrator
is the person or persons actually responsible (whether or
not so designated under the terms of the MEWA or ECE)
for the control, disposition, or management of the cash
or property received by or contributed to the MEWA or
ECE, irrespective of whether such control, disposition,
or management is exercised directly by such person or
persons or indirectly through an agent, custodian, or
trustee designated by such person or persons.
“Employer Identification Number” or “EIN”
An EIN is a nine-digit employer identification number (for
example, 00-1234567) that has been assigned by the IRS.
Entities that do not have an EIN should apply for one on
Form SS-4, Application for Employer Identification Number
as soon as possible. You can obtain Form SS-4 by calling
1-800-829-4933 or at the IRS Web site at www.irs.gov.
EBSA does NOT issue EINs.
“Entity Claiming Exception” or “ECE”
For purposes of this report, the term “entity claiming
exception” or “ECE” means any plan or other arrangement
that is established or maintained for the purpose of offering
or providing medical benefits to the employees of two or
more employers (including one or more self-employed
individuals), or to their beneficiaries, and that claims it
is not a MEWA because the plan or other arrangement
claims the exception relating to plans established or
maintained pursuant to one or more collective bargaining
agreements. (See section 3(40)(A)(i) of ERISA and 29
CFR 2510.3-40 of the Department’s regulations.)
The administrator of an ECE must file this report each
year for the first 3 years after the ECE is “originated.”
(Warning: An ECE may be “originated” more than
once. Each time an ECE is “originated” more filings are
triggered.)

“Employee Welfare Benefit Plan”
In general, an employee welfare benefit plan means any
plan, fund, or program established or maintained by an
employer or by an employee organization, or by both,
to the extent such plan, fund, or program provides its
participants or beneficiaries the benefits listed in section
3(1) of ERISA (including benefits for medical care).
“Excepted Benefits”
Part 7 of Subtitle B of Title I (Part 7) of ERISA does not
apply to any group health plan or group health insurance
issuer in relation to its provision of excepted benefits.
Certain benefits that are generally not health coverage
are excepted in all circumstances. These benefits are:
coverage only for accident (including accidental death
and dismemberment), disability income insurance,
liability insurance (including general liability insurance
and automobile liability insurance), coverage issued as a
supplement to liability insurance, workers’ compensation or
similar insurance, automobile medical payment insurance,
credit-only insurance (for example, mortgage insurance),
and coverage for on-site medical clinics.
Other benefits that generally are health coverage
are excepted if certain conditions are met. Specifically,
limited scope dental benefits, limited scope vision
benefits, and long-term care benefits are excepted if
they are provided under a separate policy, certificate, or
contract of insurance, or are otherwise not an integral
part of the group health plan. Benefits provided under a
health flexible spending arrangement may also qualify
as excepted benefits if certain requirements are met. For
more information on limited excepted benefits, see the
Department of Labor’s regulations at 29 CFR 2590.732(c)(3).
In addition, noncoordinated benefits may be excepted
benefits. The term “noncoordinated benefits” refers to
coverage for a specified disease or illness (such as
cancer-only coverage) or hospital indemnity or other fixed
dollar indemnity insurance (such as insurance that pays
$100/day for a hospital stay as its only insurance benefit),
if three conditions are met. First, the benefits must be
provided under a separate policy, certificate, or contract
of insurance. Second, there can be no coordination
between the provision of these benefits and an exclusion
of benefits under a group health plan maintained by the
same plan sponsor. Third, benefits must be paid without
regard to whether benefits are provided with respect to
the same event under a group health plan maintained by
the same plan sponsor. For more information on these
noncoordinated excepted benefits, see the Department of
Labor’s regulations at 29 CFR 2590.732(c)(4).
Finally, supplemental benefits may be excepted if
certain conditions are met. Specifically, the benefits are
excepted only if they are provided under a separate policy,
certificate or contract of insurance, and the benefits are
Medicare supplemental (commonly known as “Medigap”
or “MedSupp”) policies, TRICARE supplements, or
supplements to certain employer group health plans.
Such supplemental coverage cannot duplicate primary
coverage and must be specifically designed to fill gaps in
primary coverage, coinsurance, or deductibles. For more
information on supplemental excepted benefits, see the
Department of Labor’s Field Assistance Bulletin 2007-04.

Page 2

Note that retiree coverage under a group health plan that
coordinates with Medicare may serve a supplemental
function similar to that of a Medigap policy. However,
such employer-provided retiree “wrap around” benefits
are not excepted benefits (because they are expressly
excluded from the definition of a Medicare supplemental
policy in section 1882(g)(1) of the Social Security Act).
For more information on supplemental excepted benefits,
see the Department of Labor’s regulations at
29 CFR 2590.732(c)(5).
“Group Health Plan”
In general, a group health plan means an employee
welfare benefit plan to the extent that the plan provides
benefits for medical care to employees (including both
current and former employees) or their dependents (as
defined under the terms of the plan) directly or through
insurance, reimbursement, or otherwise. See ERISA
section 733(a) and 29 CFR 2590.732(a).
“Health Insurance Issuer” or “Issuer”
The term “health insurance issuer” or “issuer” is defined,
in pertinent part, in §2590.701-2 of the Department’s
regulations as “an insurance company, insurance service,
or insurance organization (including an HMO) that is
required to be licensed to engage in the business of
insurance in a State and that is subject to State law which
regulates insurance . . . . Such term does not include a
group health plan.”
“Multiple Employer Welfare Arrangement” or “MEWA”
In general, a multiple employer welfare arrangement
(MEWA) is an employee welfare benefit plan or other
arrangement that is established or maintained for the
purpose of offering or providing medical benefits to the
employees of two or more employers (including one or
more self-employed individuals), or to their beneficiaries,
except that the term does not include any such plan or
other arrangement that is established or maintained under
or pursuant to one or more agreements that the Secretary
finds to be collective bargaining agreements, by a rural
electric cooperative, or by a rural telephone cooperative
association. See ERISA section 3(40) and 29 CFR
2510.3-40 of the Department’s regulations. (Note: Many
States regulate entities as MEWAs using their own State
definition of the term. Whether or not an entity meets a
State’s definition of a MEWA for purposes of regulation
under State law is a matter of State law.)
For more information on MEWAs, visit EBSA’s Web
site at www.dol.gov/ebsa or call the EBSA toll-free
hotline at 1-866-444-3272 and ask for the booklet entitled
MEWAs: Multiple Employer Welfare Arrangements under
the Employee Retirement Income Security Act (ERISA):
A Guide to Federal and State Regulation.
For information on State MEWA regulation, contact your
State Insurance Department.
“Originated”
For purposes of this report, a MEWA or ECE is “originated”
each time any of the following events occur:
(1) The MEWA or ECE first begins offering or providing
coverage for medical care to the employees of two or
more employers (including one or more self-employed
individuals);

(2) The MEWA or ECE begins offering or providing
such coverage after any merger of MEWAs or ECEs
(unless all MEWAs or ECEs involved in the merger were
last originated at least 3 years prior to the merger); or
(3) The number of employees to which the MEWA or
ECE provides coverage for medical care is at least 50
percent greater than the number of such employees on
the last day of the previous calendar year (unless such
increase is due to a merger with another MEWA or ECE
under which all MEWAs and ECEs that participate in the
merger were last originated at least 3 years prior to the
merger).
Therefore, a MEWA or ECE may be originated more
than once.
“Plan Number” or “PN”
A PN is a three-digit number assigned to a plan or other
entity by an employer or plan administrator. For plans
or other entities providing welfare benefits, the first plan
number should be number 501 and additional plans should
be numbered consecutively. For MEWAs and ECEs that
file a Form 5500 Annual Return/Report of Employee
Benefit Plan (Form 5500), the same PN should be used for
the Form M-1. (For more information on the Form 5500 you
can access www.efast.dol.gov or call toll-free at
1-866-463-3278.)
“Sponsor”
For purposes of this report, the “sponsor” means:
(1) If the MEWA or ECE is a group health plan, the
sponsor is the “plan sponsor,” which is defined in ERISA
section 3(16)(B) as (i) the employer in the case of an
employee benefit plan established or maintained by a
single employer; (ii) the employee organization in the
case of a plan established or maintained by an employee
organization; or (iii) in the case of a plan established or
maintained by two or more employers or jointly by one or
more employers and one or more employee organizations,
the association, committee, joint board of trustees, or
other similar group of representatives of the parties who
establish or maintain the plan; or
(2) If the MEWA or ECE is not a group health plan, the
sponsor is the entity that establishes or maintains the
MEWA or ECE.
1.2 Who Must File
General Rules
The administrator of a MEWA generally must file this
report for every calendar year, or portion thereof, that the
MEWA offers or provides benefits for medical care to the
employees of two or more employers (including one or
more self-employed individuals). The administrator of an
ECE must file the report if the ECE was last originated at
any time within 3 years before the annual filing due date.
(See the definition of “originated” in Section 1.1 and the
discussion of When to File in Section 1.3.) (Caution: An
ECE may be “originated” more than once. Each time an
ECE is “originated,” more filings are triggered.)

Page 3

Exceptions
(1) Irrespective of the general rules (described above),
in no event is reporting required by the administrator of
a MEWA or ECE if the MEWA or ECE meets any of the
following conditions:
(i) It is licensed or authorized to operate as a health
insurance issuer in every State in which it offers or
provides coverage for medical care to employees.
(ii) It provides coverage that consists solely of excepted
benefits (defined above), which are not subject to Part 7 of
ERISA. (However, if the MEWA or ECE provides coverage
that consists both of excepted benefits and other benefits
for medical care that are not excepted benefits, the
administrator of the MEWA or ECE is required to file the
Form M-1.)
(iii) It is a group health plan that is not subject to
ERISA, including a governmental plan, church plan,
or plan maintained only for the purpose of complying
with workers’ compensation laws within the meaning of
sections 4(b)(1), 4(b)(2), or 4(b)(3) of ERISA, respectively.
(iv) It provides coverage only through group health plans
that are not covered by ERISA, including governmental
plans, church plans, and plans maintained only for the
purpose of complying with workers’ compensation laws
within the meaning of sections 4(b)(1), 4(b)(2), or 4(b)(3)
of ERISA, respectively (or other arrangements not subject
to ERISA, such as health insurance coverage offered to
individuals other than in connection with a group health
plan, known as individual market coverage).
(2) In addition, in no event is reporting required by the
administrator of an entity that would not constitute a
MEWA or ECE but for the following circumstances:
(i) It provides coverage to the employees of two or
more trades or businesses that share a common control
interest of at least 25 percent at any time during the plan
year, applying principles similar to the principles applied
under section 414(b) or (c) of the Internal Revenue
Code.
(ii) It provides coverage to the employees of two
or more employers due to a change in control of
businesses (such as a merger or acquisition) that occurs
for a purpose other than avoiding Form M-1 filing and is
temporary in nature (i.e., it does not extend beyond the
end of the plan year following the plan year in which the
change in control occurs).
(iii) It provides coverage to persons (excluding spouses
and dependents) who are not employees or former
employees of the plan sponsor, such as nonemployee
members of the board of directors or independent
contractors, and the number of such persons who are
not employees or former employees does not exceed
one percent of the total number of employees or former
employees covered under the arrangement, determined
as of the last day of the year to be reported or, in the case
of a 90-day origination report, determined as of the 60th
day following the origination date.

1.3 When to File
General Rule
The Form M-1 must be filed no later than March 1
following any calendar year for which a filing is required
(unless March 1 is a Saturday, Sunday, or Federal holiday,
in which case the form must be filed no later than the next
business day).
90-Day Origination Report
In general, an expedited filing is also required after a
MEWA or ECE is originated. To satisfy this requirement,
the administrator must complete and file the Form M-1
within 90 days of the date the MEWA or ECE is originated
(unless the last day of the 90-day period is a Saturday,
Sunday, or Federal holiday, in which case the form must
be filed no later than the next business day).
Exception to the 90-Day Origination Report Requirement
No 90-Day Origination Report is required if the entity was
originated in October, November, or December.
Extensions of Time
A one-time extension of time to file will automatically be
granted if the administrator of the MEWA or ECE requests
an extension. To request an extension, the administrator
must: (1) complete Parts I and II of the Form M-1 (and
check Box B(3) in Part I); (2) sign, date, and type or print
the administrator’s name at the end of the form; and
(3) file this request for extension no later than the
normal due date for the Form M-1. In such a case, the
administrator will have an additional 60 days to file a
completed Form M-1. A copy of this request for extension
must be attached to the completed Form M-1 when filed.
1.4 How to File
The 2010 Form M-1 can be filed electronically with
the Department of Labor by going to
www.askebsa.dol.gov/mewa.
In addition, completed paper copies of the Form M-1 can
be sent to:
Public Disclosure Office, EBSA
Room N-1513, U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
1.5 Penalties
ERISA provides for a civil penalty for failure to file a
Form M-1, failure to file a completed Form M-1, and late
filings. In the event of no filing, an incomplete filing, or
a late filing, a penalty may apply of up to $1,100 a day
for each day that the administrator of the MEWA or ECE
fails or refuses to file a complete report (or a higher
amount if adjusted pursuant to the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Debt
Collection Improvement Act of 1996). In addition, certain
other penalties may apply.

Page 4

SECTION 2
2.1 Year to be Reported
General Rule
The administrator of a MEWA or ECE that is required to file
must complete the Form M-1 using the previous calendar
year’s information. (For example, for a filing due by March
1, 2011, calendar year 2010 information should be used.)
Fiscal Year Exception
The administrator of a MEWA or ECE that is required
to file may report using fiscal year information if the
administrator of the MEWA or ECE has at least 6
continuous months of fiscal year information to report.
(Thus, for example, for a filing that is due by March
1, 2011, fiscal year 2010 information may be used if
the administrator has at least 6 continuous months of
fiscal year 2010 information to report.) In this case,
the administrator should check Box A(2) in Part I and
specify the fiscal year.
2.2 90-Day Origination Report
When a MEWA or ECE is originated, a 90-Day Origination
Report is generally required. (See Section 1.3 on When
to File.) When filing a 90-Day Origination Report, the
administrator is required to complete the Form M-1 using
information based on at least 60 continuous days of
operation by the MEWA or ECE.
Remember, there is an exception to the 90-Day
Origination Report requirement. No 90-Day Origination
Report is required if the entity was originated in October,
November, or December.
2.3 Signature and Date
For paper filings, the administrator must sign and date the
report. The signature must be original. The name of the
individual who signed as the administrator must be typed
or printed clearly on the line under the signature line.
If filing online, the administrator must safeguard the
EBSA-assigned Personal Identification Number (PIN) and
acknowledge the online certification that the online filer is
the administrator authorized to submit the filing on behalf
of the MEWA or ECE. This electronic acknowledgement
will bind the administrator to the information submitted on
the electronic filing in lieu of an original signature.
2.4 Attaching Additional Pages
For paper filings, if more space is needed to complete any
item on the Form M-1, additional pages may be attached.
Additional pages must be the same size as this form
(8 1/2” x 11”) and should include the name of the MEWA
or ECE, the Item number, and the word “Attachment” in the
upper right corner. In addition, the attachment for any item
should be in a format similar to that item on the form.
If filing online, these additional pages may be uploaded
online at the Web filing site.

2.5 Amended Report
For paper filings, to correct errors and/or omissions on a
previously filed Form M-1, submit a completed Form M-1
with Part I, Box B(2) checked and an original signature.
When filing an amended report on paper, answer all
questions and circle the amended line numbers.
Online filers may file an amended report by selecting
New Filing at the Web filing site and selecting Item B(2)
“An amended report.”

SECTION 3
Important: “Yes/No” questions must be marked “Yes” or
“No,” but not both. “N/A” is not an acceptable response
unless expressly permitted in the instructions to that line.
3.1 Line-By-Line Instructions
Part I - Report Identification Information
Complete either Item A or Item B, as applicable.
Annual Reports: If this is an annual report, check either
box A(1) or box A(2).
Box A(1): Check this box if calendar year information
is being used to complete this report. (See Section 2.1 on
Year to be Reported.)
Box A(2): Check this box if fiscal year information is
being used to complete this report. Also specify the fiscal
year. (For example, if fiscal year 2010 information is being
used instead of calendar year 2010 information, specify
the dates the fiscal year begins and ends.) (See Section
2.1 on Year to be Reported.)
Special Filings: If this is a special filing, check either box
B(1), box B(2), or box B(3).
Box B(1): Check this box if the filing is a 90-Day
Origination Report. (See Section 1.2 on Who Must File,
Section 1.3 on When to File, and Section 2.2 on 90-Day
Origination Report.)
Box B(2): Check this box if the filing is an Amended
Report. (See Section 2.5 on Amended Reports.)
Box B(3): Check this box if the administrator of the
MEWA or ECE is requesting an extension. (See Section
1.3 on When to File.)
Final Reports: Check the box in Item C if the administrator
does not intend to file a Form M-1 next year. For example,
if this is the third filing following an origination for an ECE,
or if a MEWA has ceased operations, the administrator
must check this box.
Part II - MEWA or ECE Identification Information
Items 1a through 1d: Enter the name, address, and
telephone number of the MEWA or ECE, and any EIN
and PN used by the MEWA or ECE in reporting to the
Department of Labor or the Internal Revenue Service. If
the MEWA or ECE does not have any EINs associated
with it, leave Item 1c blank. If the MEWA or ECE does not
have any PNs associated with it, leave Item 1d blank. In
answering these questions, list only EINs and PNs used

Page 5

by the MEWA or ECE itself and not those used by group
health plans or employers that purchase coverage through
the MEWA or ECE. For more information on EINs or PNs
see Section 1.1 on Definitions.
Items 2a through 2d: Enter the name, address, telephone
number, and email address of the administrator of the
MEWA or ECE, and the EIN used by the administrator
in reporting to the Department of Labor or the Internal
Revenue Service. For this purpose, use only an EIN
associated with the administrator as a separate entity. Do
not use any EIN associated with the MEWA or ECE itself.
Inclusion of an email address allows the Department of
Labor to contact the administrator in the event problems
arise, particularly with an electronic filing. For more
information on the definition of “administrator,” and on
EINs, see Section 1.1 on Definitions.
Items 3a through 3c: Enter the name, address, and
telephone number of the entity sponsoring the MEWA or
ECE, and any EIN used by the sponsor in reporting to
the Department of Labor or the Internal Revenue Service.
For this purpose, use only an EIN associated with the
sponsor. Do not use any EIN associated with the MEWA
or ECE itself. For more information on the definition of
“sponsor,” and on EINs, see Section 1.1 on Definitions. If
there is no such entity, leave Item 3 blank and skip to
Item 4.
Part III - Registration Information
Item 4: Enter the date the MEWA or ECE was most
recently “originated.” For this purpose, see the definition of
“originated” in Section 1.1.
Item 5: Complete the chart. If the report is a 90-Day
Origination Report, complete this item with information
that is current as of the 60th day following the origination
date. Otherwise, complete this item with information that is
current as of the last day of the year to be reported. (See
Section 2.1 on Year to be Reported.) When completing the
chart, complete Item 5a first. Then for each row, complete
Item 5b through Item 5g as it applies to the State listed in
Item 5a.
Item 5a. Enter all States in which the MEWA or ECE
provides benefits for medical coverage. For this purpose,
list the State(s) where the employers (of the employees
receiving coverage) are domiciled. In answering this
question, a “State” includes any State of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, and the Northern
Mariana Islands. Enter one State per row.
Item 5b. For each State listed in Item 5a, specify
whether the MEWA or ECE is licensed or otherwise
authorized to operate as a health insurance issuer in the
State listed in that row. (For a definition of the term “health
insurance issuer,” see Section 1.1.) For more information
on whether an entity that is a licensed or registered MEWA
in a State meets the definition of a health insurance issuer
in that State, contact the State Insurance Department.
Item 5c. For each “yes” answer in Item 5b, enter the
National Association of Insurance Commissioners (NAIC)
number.

Item 5d. For each “no” answer in Item 5b, specify
whether the MEWA or ECE is fully insured through one
or more health insurance issuers in each State.
Item 5e. For each “yes” answer in Item 5d, enter the
name of the insurer and its NAIC number (if available). If
there is more than one insurer, enter all insurers and their
NAIC numbers (if available).
Item 5f. In each State listed in Item 5a, specify
whether the MEWA or ECE has purchased any stop-loss
coverage. For this purpose, stop-loss coverage includes
any coverage defined by the State as stop-loss coverage.
For this purpose, stop-loss coverage also includes any
financial reimbursement instrument that is related to
liability for the payment of health claims by the MEWA or
ECE, including reinsurance and excess loss insurance.
Item 5g. For each “yes” answer in Item 5f, enter the
name of the stop-loss insurer and its NAIC number (if
available). If there is more than one stop-loss insurer,
enter all stop-loss insurers and their NAIC numbers
(if available).
Item 6: Of the States identified in Item 5a, identify
all States in which the MEWA or ECE conducted 20
percent or more of its business (based on the number
of participants receiving coverage for medical care
under the MEWA or ECE).
For example, consider a MEWA that offers or provides
coverage to the employees of six employers. Two
employers are located in State X and 70 participants
in the MEWA receive coverage through these two
employers. Three employers are located in State Y and 30
participants in the MEWA receive coverage through these
three employers. Finally, one employer is located in State
Z and 200 participants in the MEWA receive coverage
through this employer. In this example, the administrator
of the MEWA should specify State X and State Z under
Item 6 because the MEWA conducts 23 1/3 percent of
its business in State X (70/300 = 23 1/3 percent) and 66
2/3 percent of its business in State Z (200/300 = 66 2/3
percent). However, the administrator should not specify
State Y because the MEWA conducts only 10 percent of
its business in State Y (30/300 = 10 percent).
If the report is a 90-Day Origination Report, complete
this item with information that is current as of the 60th day
following the origination date. Otherwise, complete this
item with information that is current as of the last day of
the year to be reported. (See Section 2.1 on Year to be
Reported.)
Item 7: Identify the total number of participants covered
under the MEWA or ECE. For more information on
determining the number of participants, see the
Department of Labor’s regulations at 29 CFR 2510.3-3(d).
If the report is a 90-Day Origination Report, complete
this item with information that is current as of the 60th day
following the origination date. Otherwise, complete this
item with information that is current as of the last day of
the year to be reported. (See Section 2.1 on Year to be
Reported.)

Page 6

Part IV - Information for Compliance with Part 7 of ERISA
Background Information on Part 7 of ERISA: Part 7 of
ERISA contains a number of provisions for health coverage
offered by group health plans and group health insurance
issuers. Specifically, Part 7 of ERISA contains:
• Portability and nondiscrimination provisions added
by title I of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA) and amended by the
Children’s Health Insurance Program Reauthorization
Act of 2009 (CHIPRA);
• Mental health parity provisions added by the Mental
Health Parity Act of 1996 (MHPA) and the Paul
Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008 (MHPAEA);
• Newborns’ and Mothers’ Health Protection Act of 1996
(Newborns’ Act) provisions;
• Women’s Health and Cancer Rights Act of 1998
(WHCRA) provisions;
• Genetic Information Nondiscrimination Act of 2008
(GINA) title I provisions;
• Protections for dependent students who take a medically
necessary leave of absence from school under
Michelle’s Law; and
• Health reform provisions under the Patient Protection
and Affordable Care Act (Affordable Care Act).

General Information Regarding the Applicability of
Part 7: In general, the foregoing provisions apply to group
health plans and health insurance issuers in connection
with a group health plan. Many MEWAs and ECEs are
group health plans or health insurance issuers. However,
even if a MEWA or ECE is neither a group health plan nor
a health insurance issuer, if the MEWA or ECE offers or
provides benefits for medical care through one or more
group health plans, the coverage is required to comply
with Part 7 of ERISA and the MEWA or ECE is required to
complete Items 8a through 9f.
Items 8a and 8b: With respect to Item 8a, check “yes” or
“no” as applicable. For this purpose, do not include any
audit that does not result in required corrective action. If
you answer “yes” under Item 8a, identify, in Item 8b, any
such litigation or enforcement proceeding.
Items 9a through 9f: In general, you must answer “yes” or
“no” to this question if you are the administrator of a MEWA
or ECE that is a group health plan or if you are providing
benefits for medical care to employees through one or
more group health plans. For purposes of determining if
a MEWA or ECE is in compliance with these provisions,
the administrator should check the relevant implementing
regulations. In addition, the Self-Compliance Tool included
in the instructions to this form may be helpful.
3.2 Self-Compliance Tools

Implementing regulations are generally contained
in 29 CFR Part 2590. With respect to most of these
requirements, corresponding provisions are contained in
chapter 100 of the Internal Revenue Code (Code) and
title XXVII of the Public Health Service Act (PHS Act). A
Self-Compliance Tool, which may be used to help assess
an entity’s compliance with Part 7 of ERISA, is included
later in these instructions. This tool provides guidance with
respect to all the provisions listed above except for the
provisions of the Affordable Care Act, which is generally
not applicable until plan years beginning on or after
September 23, 2010, and thus generally not applicable
for Year 2010 Form M-1 filings. The Department of Labor
expects to update this tool to address the provisions of the
Affordable Care Act for the Year 2011 Form M-1.
Additional compliance assistance information that may
be helpful in understanding the requirements listed above
is available in publications, fact sheets, and frequently
asked questions available on EBSA’s Web site at www.dol.
gov/ebsa. Interested persons may also call and speak to a
benefits advisor about these laws, by calling the EBSA tollfree hotline at 1-866-444-3272.

A Self-Compliance Tool, which may be used to help assess
an entity’s compliance with Part 7 of ERISA, is included
on the following pages of these instructions. This tool may
also be helpful in answering Items 9a through 9f of the
Form M-1.
Paperwork Reduction Act Notice
We ask for the information on this form to carry out the
law as specified in ERISA. You are required to give us the
information. We need it to determine whether the MEWA or
ECE is operating according to law. You are not required to
respond to this collection of information unless it displays a
current, valid OMB control number.
The average time needed to complete and file the form
is estimated below. These times will vary depending on
individual circumstances.
Learning about the law or the form: 2 hrs.
Preparing the form: 50 min. - 1 hr. and 35 min.

States may, under certain circumstances, impose stricter
laws with respect to health insurance issuers. Generally,
questions concerning State laws should be directed to that
State’s Insurance Department.

Page 7

Self-Compliance Tool for Part 7 of ERISA:
YES
NO
HIPAA and Other Health Care-Related Provisions

N/A

INTRODUCTION
The requirements described in the Part 7 tool generally
apply to group health plans and group health insurance
issuers. However, references in this tool are generally
limited to “group health plans” or “plans” for convenience.

This self-compliance tool is useful for group health plans,
plan sponsors, plan administrators, health insurance
issuers, and other parties to determine whether a group
health plan is in compliance with the provisions of Part
7 of ERISA.

Cumulative List of Self-Compliance Tool Questions for HIPAA and Other
Health Care-Related Statutes Added to Part 7 of ERISA
I. Determining Compliance with the HIPAA Provisions in Part 7 of ERISA
If you answer "No" to any of the questions below, the group health plan
is in violation of the HIPAA provisions in Part 7 of ERISA.
YES

SECTION A - Limits on Preexisting Condition Exclusions
If the plan imposes a preexisting condition exclusion period, the plan must comply
with this section.
Definition: Generally, a preexisting condition exclusion is a limitation or exclusion
of benefits relating to a condition based on the fact that the condition was present
before the effective date of coverage under a group health plan or group health
insurance coverage, whether or not any medical advice, diagnosis, care, or treatment
was recommended or received before that day. See ERISA section 701(b)(1); 29
CFR 2590.701-3(a)(1).
Tip: Some preexisting condition exclusions are clearly designated as such in
the plan documents. Others are not. Check for hidden preexisting condition
exclusion provisions. A hidden preexisting condition exclusion is not designated as
a preexisting condition exclusion, but restricts benefits based on when a condition
arose in relation to the effective date of coverage.
 Example: A plan excludes coverage for cosmetic surgery unless the surgery is
required by reason of an accidental injury occurring after the effective date of
coverage. This plan provision operates as a preexisting condition exclusion

1

NO

N/A

YES
because only people who were injured while covered under the plan receive
benefits for treatment. People who were injured while they had no coverage
(or while they had prior coverage) do not receive benefits for treatment.
Accordingly, this plan provision limits benefits relating to a condition because
the condition was present before the effective date of coverage, and is considered
a preexisting condition exclusion.
A plan imposing a preexisting condition exclusion is required to comply with all
the rules described in this SECTION A. Therefore, if the plan is not mindful that a
provision operates as a preexisting condition exclusion, there could be multiple
violations of this SECTION A.
Tip: To comply with HIPAA, a plan imposing a hidden preexisting condition
exclusion can rewrite its plan provision so that it is not a preexisting condition
exclusion (i.e., benefits are not limited based on whether the condition arose before
an individual’s effective date of coverage) or the plan must limit the preexisting
condition exclusion to comply with the rules of this SECTION A.
If the plan does not impose a preexisting condition exclusion period, including a
hidden preexisting condition exclusion period, check "N/A" and skip to
SECTION B ..............................................................................................................
Question 1 – Six-month look-back period
Does the plan comply with the 6-month look-back rule? ......................................
 A preexisting condition exclusion may apply only to conditions for which
medical advice, diagnosis, care, or treatment was recommended or received
during the 6-month period ending on an individual's "enrollment date." See
ERISA section 701(a)(1); 29 CFR 2590.701-3(a)(2)(i).
Definitions: An individual's enrollment date is the earlier of: (1) the first day of
coverage; or (2) the first day of any waiting period for coverage. (Waiting period
means the period that must pass before an employee or dependent is eligible to
enroll under the terms of the plan. If an employee or dependent enrolls as a late
enrollee or special enrollee, any period before such enrollment date is not a waiting
period.) Therefore, if the plan has a waiting period, the 6-month look-back period
ends on the first day of the waiting period, not the first day of coverage. See ERISA
sections 701(b)(1) and (4); 29 CFR 2590.701-3(a)(3).
Tip: If the plan has a waiting period for coverage, ensure that the 6-month lookback period is measured from the first day of the waiting period, not the first day of
coverage.

2

NO

N/A

YES
Question 2 – Twelve/eighteen-month look-forward period
Does the plan comply with HIPAA's 12-month (or 18-month) look-forward
rule? ............................................................................................................................
 The maximum preexisting condition exclusion period is 12 months (18 months
for late enrollees), measured from an individual's enrollment date. See ERISA
section 701(a)(2); 29 CFR 2590.701-3(a)(2)(ii).
Tip: If the plan has a waiting period, the 12-month (or 18-month) look-forward
period must begin on the first day of the waiting period, not the first day of coverage.
Therefore, the preexisting condition exclusion period runs concurrently with the
waiting period, rather than beginning after the waiting period ends.
Question 3 – Offsetting the length of preexisting condition exclusions by
creditable coverage
Does the plan offset the length of its preexisting condition exclusion by an
individual's creditable coverage? ...............................................................................
 The length of the plan's preexisting condition exclusion must be offset by the
number of days of an individual's creditable coverage. However, days of
coverage prior to a "significant break in coverage" are not required to be
counted as creditable coverage. Under Federal law, a significant break in
coverage is a period of 63 days or more without any health coverage. See
ERISA section 701(a)(3); 29 CFR 2590.701-3(a)(2)(iii).
Definition: Creditable coverage means coverage of an individual under any of the
following:
 A group health plan (including COBRA coverage),
 Health insurance coverage,
 Medicare,
 Medicaid,
 TRICARE,
 The Indian Health Service,
 A State health risk benefit pool,
 The Federal Employee Health Benefit Program,
 A public health plan,
 Peace Corps Act health benefits, or
 The State Children’s Health Insurance Program.
See ERISA section 701(c); 29 CFR 2590.701-4(a)(1).
Question 4 – Preexisting condition exclusion on genetic information
Does the plan comply with HIPAA by not imposing a preexisting condition
exclusion with respect to genetic information? .........................................................
 Genetic information alone cannot be treated as a preexisting condition in the
absence of a diagnosis of a condition related to such information. See ERISA
section 701(a)(1) and (b)(1); 29 CFR 2590.701-3(b)(6).

3

NO

N/A

YES
Question 5 – Preexisting condition exclusion on newborns
Does the plan comply with HIPAA by not imposing an impermissible
preexisting condition exclusion on newborns? . ........................................................
 A plan generally may not impose a preexisting condition exclusion on a child
who enrolls in creditable coverage within 30 days of birth.
See ERISA section 701(d)(1); 29 CFR 2590.701-3(b)(1).
Tip: Even if a child is not covered under the plan within 30 days of birth, the child
still cannot be subject to a preexisting condition exclusion if he or she was enrolled
in any creditable coverage within 30 days of birth and does not incur a subsequent
63-day break in coverage.
Question 6 – Preexisting condition exclusion on children adopted or placed
for adoption
Does the plan comply with HIPAA by not imposing an impermissible
preexisting condition exclusion on adopted children or children placed for
adoption? .....................................................................................................................
 A plan generally may not impose a preexisting condition exclusion on a child
who enrolls in creditable coverage within 30 days of adoption or placement for
adoption. See ERISA section 701(d)(2); 29 CFR 2590.701-3(b)(2).
Question 7 – Preexisting condition exclusion on pregnancy
Does the plan comply with HIPAA by not imposing a preexisting condition
exclusion on pregnancy? ............................................................................................
 A plan may not impose a preexisting condition exclusion relating to pregnancy.
See ERISA section 701(d)(3); 29 CFR 2590.701-3(b)(5).
Tip: A plan provision that denies benefits for pregnancy until 12 months after an
individual generally becomes eligible for benefits under the plan is a preexisting
condition exclusion and is prohibited. See 29 CFR 2590.701-3(a)(1)(ii) Example 5.
Question 8 – General notices of preexisting condition exclusion
Does the plan provide adequate and timely general notices of preexisting
condition exclusions? . .................................................................................................
 A group health plan may not impose a preexisting condition exclusion with
respect to a participant or dependent before notifying the participant, in
writing, of:
 The existence and terms of any preexisting condition exclusion under the plan.
This includes the length of the plan’s look-back period, the maximum preexisting condition exclusion period under the plan, and how the plan will reduce
this maximum by creditable coverage.

4

NO

N/A

YES
 A description of the rights of individuals to demonstrate creditable coverage
(and any applicable waiting periods) through a certificate of creditable
coverage or through other means. This must include: (1) a description of the
right of the individual to request a certificate from a prior plan or issuer, if
necessary; and (2) a statement that the current plan or issuer will assist in
obtaining a certificate from any prior plan or issuer, if necessary.
 A person to contact (including an address or telephone number) for obtaining additional information or assistance regarding the preexisting condition
exclusion.
See 29 CFR 2590.701-3(c)(2).
 The general notice is required to be provided as part of any written application
materials distributed for enrollment. If a plan does not distribute such materials,
the notice must be provided by the earliest date following a request for
enrollment that the plan, acting in a reasonable and prompt fashion, can provide
the notice. See 29 CFR 2590.701-3(c)(1).
Tips: Ensure that the general notice is both complete and timely. The plan can
include its general notice of preexisting condition exclusion in the summary plan
description (SPD) if the SPD is provided as part of the application materials. If not,
this general notice must be provided separately to be timely. A model notice is
provided in the EBSA publication, Health Benefits Coverage Under Federal Law.
Question 9 – Determination of creditable coverage
Does the plan comply with the requirements relating to determination of
individuals’ creditable coverage?...............................................................................
 If a plan receives creditable coverage information from an individual, the plan
is required to make a determination regarding the amount of the individual’s
creditable coverage and the length of any preexisting condition exclusion that
remains. This determination must be made within a reasonable time following
the receipt of the creditable coverage information. Whether this determination
is made within a reasonable time depends on all the relevant facts and circumstances, including whether the plan’s application of a preexisting condition
exclusion would prevent an individual from having access to urgent medical
care. See 29 CFR 2590.701-3(d)(1).
 A plan may not impose any limit on the amount of time an individual has to
present a certificate or other evidence of creditable coverage. See 29 CFR
2590.701-3(d)(2).

5

NO

N/A

YES
Question 10 – Individual notices of preexisting condition exclusions
Does the plan provide adequate and timely individual notices of preexisting
condition exclusion? ...................................................................................................
 After an individual has presented evidence of creditable coverage and after the
plan has made a determination of creditable coverage (See 29 CFR 2590.7013(d)), the plan must provide the individual a written notice of the length of
preexisting condition exclusion that remains after offsetting for prior creditable
coverage. See 29 CFR 2590.701-3(e).
 Exception: A plan is not required to provide this notice if the plan’s preexisting condition exclusion is completely offset by the individual’s prior creditable
coverage. See 29 CFR 2590.701-3(e).
 The notice must disclose:
 The determination of the length of any preexisting condition exclusion that
applies to the individual (including the last day on which the preexisting
condition exclusion applies);
 The basis for the determination, including the source and substance of any
information on which the plan relied;
 An explanation of the individual’s right to submit additional evidence of
creditable coverage; and
 A description of any applicable appeal procedures established by the plan.
See 29 CFR 2590.701-3(e)(2).
 The individual notice must be provided by the earliest date following a determination that the plan, acting in a reasonable and prompt fashion, can provide
the notice. See 29 CFR 2590.701-3(e)(1).
Tips: Ensure that individual notices are complete and timely as well. A model notice
is provided in the EBSA publication, Health Benefits Coverage Under Federal Law.
Question 11 – Reconsideration
If the plan determines that an individual does not have the creditable
coverage claimed, and the plan wants to modify an initial determination of
creditable coverage, does the plan comply with the rules relating to
reconsideration? .........................................................................................................
 A plan may modify an initial determination of an individual’s creditable
coverage if the plan determines that the individual did not have the claimed
creditable coverage, provided that:
 A notice of the new determination is provided to the individual; and
 Until the new notice is provided, the plan, for purposes of approving access
to medical services, acts in a manner consistent with the initial determination
of creditable coverage.
See 29 CFR 2590.701-3(f).

6

NO

N/A

YES
SECTION B - Compliance with the Certificate of Creditable Coverage
Provisions
Regardless of whether the plan imposes a preexisting condition exclusion, the plan
is required to issue certificates of creditable coverage when coverage ceases and upon
request.
To be complete, under 29 CFR 2590.701-5(a)(3)(ii), each certificate must include:
1. Date issued;
2. Name of plan;
3. The individual's name and identification information (**Note: Dependent
information can be included on the same certificate with the participant
information or on a separate certificate. The plan is required to have used
reasonable efforts to get dependent information. See 29 CFR 2590.7015(a)(5)(i));
4. Plan administrator name, address, and telephone number;
5. Telephone number for further information (if different);
6. Individual's creditable coverage information:
 Either: (1) that the individual has at least 18 months of creditable coverage; or
(2) the date any waiting period (or affiliation period) began and the date
creditable coverage began.
 Also, either: (1) the date creditable coverage ended; or (2) that creditable
coverage is continuing.
 Automatic certificates of creditable coverage should reflect the last period of
continuous coverage.
 Requested certificates should reflect periods of continuous coverage that an
individual had in the 24 months prior to the date of the request (up to 18 months
of creditable coverage). See 29 CFR 2590.701-5(a)(3)(iii).
7. An educational statement regarding HIPAA, which explains:
 The restrictions on the ability of a plan or issuer to impose a preexisting
condition exclusion (including an individual’s ability to reduce a preexisting
condition exclusion by creditable coverage);
 Special enrollment rights;
 The prohibitions against discrimination based on any health factor;
 The right to individual health coverage;
 The fact that State law may require issuers to provide additional protections to
individuals in that State; and
 Where to get more information.
Tips: Remember to include information about waiting periods and dependents. If
a plan imposes a waiting period, the date the waiting period began is required to be
reflected on the certificate. In addition, if the certificate applies to more than one
person (such as a participant and dependents), the dependents’ creditable coverage
information is required to be reflected on the certificate (or the plan can issue a
separate certificate to each dependent). (**Note: If a dependent’s last known
address is different from the participant’s last known address, a separate certificate
is required to be provided to the dependent at the dependent’s last known address.)
A model notice is provided in the EBSA publication, Health Benefits Coverage
Under Federal Law.

7

NO

N/A

YES
** Special Accountability Rule for Insured Plans:
 Under a special accountability rule in ERISA section 701(e)(1)(C) and 29 CFR
2590.701-5(a)(1)(iii), a health insurance issuer, rather than the plan, may be
responsible for providing certificates of creditable coverage by virtue of an
agreement between the two that makes the issuer responsible. In this case, the
issuer, but not the plan, violates the certificate requirements of section 701(e) if
a certificate is not provided in compliance with these rules. (**Note: An
agreement with a third-party administrator (TPA) that is not insuring benefits
will not transfer responsibility from the plan.)
 Despite this special accountability rule, other responsibilities, such as a plan
administrator's duty to monitor compliance with a contract, remain unaffected.
Accordingly, this section of the self-compliance tool is organized differently to
take into account this special accountability rule.
Question 12 – Automatic certificates of creditable coverage upon loss of
coverage
Does the plan provide complete and timely certificates of creditable coverage to individuals automatically upon loss of coverage? ......................................
 Plans are required to provide each participant and dependent covered under
the plan an automatic certificate, free of charge, when coverage ceases. (If
the plan is insured and there is an agreement with the issuer that the issuer is
responsible for providing the certificates, check "N/A" and go to Question 13.)
 Under 29 CFR 2590.701-5(a)(2)(ii), plans and issuers must furnish an
automatic certificate of creditable coverage:
 To an individual who is entitled to elect COBRA, at a time no later than
when a notice is required to be provided for a qualifying event under
COBRA (usually not more than 44 days);
 To an individual who loses coverage under the plan and who is not entitled
to elect COBRA, within a reasonable time after coverage ceases; and
 To an individual who ceases COBRA, within a reasonable time after
COBRA coverage ceases (or after the expiration of any grace period for
nonpayment of premiums).
Question 13 – Automatic certificate upon loss of coverage – Issuer
Responsibility
If there is an agreement between the plan and the issuer stating that the
issuer is responsible for providing certificates of creditable coverage, does
the issuer provide complete and timely certificates? .............................................
 Even if the plan is not responsible for issuing certificates of creditable
coverage, the plan should monitor issuer compliance with the certification
provisions.
 If the plan is self-insured, or if there is no such agreement between the plan
and the issuer, check "N/A" and skip to Question 14.
8

NO

N/A

YES
Question 14 – Certificates of creditable coverage upon request
Does the plan provide complete certificates of creditable coverage upon
request? ......................................................................................................................
(If the plan is insured and the issuer is responsible for issuing certificates pursuant
to an agreement, check "N/A" and go to Question 15.)
 Certificates of creditable coverage must be provided free of charge to
individuals who request a certificate while covered under the plan and for up
to 24 months after coverage ends. See ERISA section 701(e)(1)(A); 29 CFR
2590.701-5(a)(2)(iii).
 Requested certificates must be provided, at the earliest time that a plan or
issuer, acting in a reasonable and prompt fashion, can provide the certificate
of creditable coverage. See 29 CFR 2590.701-5(a)(2)(iii).
Question 15 – Certificates upon request – Issuer Responsibility
If the plan is insured and there is an agreement between the plan and the
issuer stating that the issuer is responsible for providing certificates of
creditable coverage, does the issuer provide complete certificates? .....................
 Even if the plan is not responsible for issuing certificates of creditable
coverage, the plan should monitor issuer compliance with the certification
provisions.
 If the plan is self-insured, or if there is no such agreement between the plan
and the issuer, check "N/A" and skip to Question 16.
Question 16 – Written Procedure for Requesting Certificates
Does the plan have a written procedure for individuals to request and
receive certificates of creditable coverage? ............................................................
 The plan must have a written procedure for individuals to request and receive
certificates of creditable coverage. The written procedure must include all
contact information necessary to request a certificate (such as name and
phone number or address). See 29 CFR 2590.701-5(a)(4)(ii).
SECTION C – Compliance with the Special Enrollment Provisions
Group health plans must allow individuals (who are otherwise eligible) to enroll
upon certain specified events, regardless of any late enrollment provisions, if
enrollment is requested within 30 days (or 60 days in the case of the special
enrollment rights added by the Children's Health Insurance Program
Reauthorization Act of 2009, discussed in Question 19) of the event. The plan must
provide for special enrollment, as follows:

9

NO

N/A

YES
Question 17 – Special enrollment upon loss of other coverage
Does the plan provide full special enrollment rights upon loss of other
coverage? ........................................................................................................................
 A plan must permit loss-of-coverage special enrollment upon: (1) loss of
eligibility for group health plan coverage or health insurance coverage; and
(2) termination of employer contributions toward group health plan coverage.
See ERISA section 701(f)(1); 29 CFR 2590.701-6(a).
 When a current employee loses eligibility for coverage, the plan must permit
the employee and any dependents to special enroll. See 29 CFR 2590.7016(a)(2)(i).
 When a dependent of a current employee loses eligibility for coverage, the plan
must permit the dependent and the employee to special enroll. See 29 CFR
2590.701-6(a)(2)(ii).
Examples: Examples of reasons for loss of eligibility include: legal separation,
divorce, death of an employee, termination or reduction in the number of hours of
employment - voluntary or involuntary (with or without electing COBRA), exhaustion
of COBRA, reduction in hours, "aging out" under other parent's coverage, moving out
of an HMO's service area, and meeting or exceeding a lifetime limit on all benefits.
Loss of eligibility for coverage does not include loss due to the individual’s failure to
pay premiums or termination of coverage for cause - such as for fraud. See 29 CFR
2590.701-6(a)(3)(i).
 When employer contributions toward an employee’s or dependent’s coverage
terminates, the plan must permit special enrollment, even if the employee or
dependent did not lose eligibility for coverage. See 29 CFR 2590.701-6(a)(3)(ii).
 Plans must allow an employee a period of at least 30 days to request enrollment.
See 29 CFR 2590.701-6(a)(4)(i).
 Coverage must become effective no later than the first day of the first month
following a completed request for enrollment. See 29 CFR 2590.701-6(a)(4)(ii).
Tip: Ensure that the plan permits special enrollment upon all of the loss of coverage
events described above.
Question 18 – Dependent special enrollment
Does the plan provide full special enrollment rights to individuals upon
marriage, birth, adoption, and placement for adoption? .........................................
 Plans must generally permit current employees to enroll upon marriage and upon
birth, adoption, or placement for adoption of a dependent child. See ERISA
section 701(f)(2); 29 CFR 2590.701-6(b)(2).
 Plans must generally permit a participant’s spouse and new dependents to enroll
upon marriage, birth, adoption, and placement for adoption. See ERISA section
701(f)(2); 29 CFR 2590.701-6(b)(2).
10

NO

N/A

YES
 Plans must allow an individual a period of at least 30 days to request enrollment. See 29 CFR 2590.701-6(b)(3)(i).
 In the case of marriage, coverage must become effective no later than the first
day of the month following a completed request for enrollment. See 29 CFR
2590.701-6(b)(3)(iii)(A).
 In the case of birth, adoption, or placement for adoption, coverage must
become effective as of the date of the birth, adoption, or placement for
adoption. See 29 CFR 2590.701-6(b)(3)(iii)(B).
Tips: Remember to allow all eligible employees, spouses, and new dependents to
enroll upon these events. Also, ensure that the effective date of coverage complies
with HIPAA, keeping in mind that some effective dates of coverage are retroactive.
Question 19 – Special enrollment rights provided through CHIPRA
Does the plan provide full special enrollment rights as required under
CHIPRA? ................................................................................................................
Under the following conditions a group health plan must allow an employee or
dependent (who is otherwise eligible) to enroll, regardless of any late enrollment
provisions, if enrollment is requested within 60 days:
 When an employee or dependent’s Medicaid or CHIP coverage is terminated.
When an employee or dependent is covered under a Medicaid plan under title
XIX of the Social Security Act or under a State child health plan under title
XXI of the Social Security Act and coverage of the employee or dependent
is terminated as a result of loss of eligibility, a group health plan must
allow special enrollment. The employee or dependent must request special
enrollment within 60 days after the date of termination of Medicaid or CHIP
coverage. See ERISA section 701(f)(3).
 Upon Eligibility for Employment Assistance under Medicaid or CHIP. When
an employee or dependent becomes eligible for assistance, with respect to
coverage under the group health plan or health insurance coverage under a
Medicaid plan or State CHIP plan, the group health plan must allow special
enrollment. The employee or dependent must request special enrollment
within 60 days after the employee or dependent is determined to be eligible for
assistance. See ERISA section 701(f)(3).
NOTE: In addition, employers that maintain a group health plan in a state with a
CHIP or Medicaid program that provides for premium assistance for group health
plan coverage must provide a notice of eligibility (referred to as the Employer CHIP
Notice) to each employee to inform them of possible opportunities available in the
state in which they reside for premium assistance for health coverage of employees
or dependents. A model notice is available at www.dol.gov/ebsa.

11

NO

N/A

YES
Question 20 – Treatment of special enrollees
Does the plan treat special enrollees the same as individuals who enroll when
first eligible, for purposes of eligibility for benefit packages, premiums, and
imposing a preexisting condition exclusion? ...........................................................
 If an individual requests enrollment while the individual is entitled to special
enrollment, the individual is a special enrollee, even if the request for enrollment coincides with a late enrollment opportunity under the plan. See 29 CFR
2590.701-6(d)(1).
 Special enrollees must be offered the same benefit packages available to similarly
situated individuals who enroll when first eligible. (Any difference in benefits or
cost-sharing requirements for different individuals constitutes a different benefit
package.) In addition, a special enrollee cannot be required to pay more for
coverage than a similarly situated individual who enrolls in the same coverage
when first eligible. The length of any preexisting condition exclusion that may
be applied cannot exceed that applied to other similarly situated individuals who
enroll when first eligible. See 29 CFR 2590.701-6(d)(2).
Question 21 – Notice of special enrollment rights
Does the plan provide timely and adequate notices of special enrollment
rights? ..........................................................................................................................
 On or before the time an employee is offered the opportunity to enroll in the
plan, the plan must provide the employee with a description of special
enrollment rights.
Tip: Ensure that the special enrollment notice is provided at or before the time an
employee is initially offered the opportunity to enroll in the plan. This may mean
breaking it off from the SPD. The plan can include its special enrollment notice in
the SPD if the SPD is provided at or before the initial enrollment opportunity (for
example, as part of the application materials). If not, the special enrollment notice
must be provided separately to be timely. A model notice is provided in the EBSA
publication, Health Benefits Coverage Under Federal Law.
SECTION D – Compliance with the HIPAA Nondiscrimination Provisions
Overview. HIPAA prohibits group health plans and health insurance issuers from
discriminating against individuals in eligibility and continued eligibility for benefits
and in individual premium or contribution rates based on health factors. These
health factors include: health status, medical condition (including both physical and
mental illnesses), claims experience, receipt of health care, medical history, genetic
information, evidence of insurability (including conditions arising out of acts of
domestic violence and participation in activities such as motorcycling, snowmobiling,
all-terrain vehicle riding, horseback riding, skiing, and other similar activities), and
disability. See ERISA section 702; 29 CFR 2590.702.

12

NO

N/A

YES
Similarly Situated Individuals. It is important to recognize that the nondiscrimination
rules prohibit discrimination within a group of similarly situated individuals. Under
29 CFR 2590.702(d), plans may treat distinct groups of similarly situated
individuals differently, if the distinctions between or among the groups are not based
on a health factor. If distinguishing among groups of participants, plans and issuers must base distinctions on bona fide employment-based classifications consistent
with the employer's usual business practice. Whether an employment-based classification is bona fide is based on relevant facts and circumstances, such as whether
the employer uses the classification for purposes independent of qualification for
health coverage. Bona fide employment-based classifications might include: full-time
versus part-time employee status; different geographic location; membership in a
collective bargaining unit; date of hire or length of service; or differing occupations.
In addition, plans may treat participants and beneficiaries as two separate groups
of similarly situated individuals. Plans may also distinguish among beneficiaries.
Distinctions among groups of beneficiaries may be based on bona fide employmentbased classifications of the participant through whom the beneficiary is receiving
coverage, relationship to the participant (such as spouse or dependent), marital status,
age or student status of dependent children, or any other factor that is not a health
factor.
Exception for benign discrimination: The nondiscrimination rules do not prohibit a
plan from establishing more favorable rules for eligibility or premium rates for
individuals with an adverse health factor, such as a disability. See 29 CFR
2590.702(g).
Check to see that the plan complies with HIPAA's nondiscrimination provisions as
follows:
Question 22 – Nondiscrimination in eligibility
Does the plan allow individuals eligibility and continued eligibility under the
plan regardless of any adverse health factor? ..........................................................

 Examples of plan provisions that violate ERISA section 702(a) because they
discriminate in eligibility based on a health factor include:
 Plan provisions that require "evidence of insurability," such as passing a
physical exam, providing a certification of good health, or demonstrating
good health through answers to a health care questionnaire in order to enroll.
See 29 CFR 2590.702(b)(1).
 Also, note that it may be permissible for plans to require individuals to complete physical exams or health care questionnaires for purposes other than for
determining eligibility to enroll in the plan, such as for determining an appropriate blended, aggregate group rate for providing coverage to the plan as a
whole. See 29 CFR 2590.702(b)(1)(iii) Example 1.
Tip: Eliminate plan provisions that deny individuals eligibility or continued eligibility under the plan based on a health factor, even if such provisions apply only to
late enrollees.

13

NO

N/A

YES
Question 23 – Nondiscrimination in benefits
Does the plan uniformly provide benefits to participants and beneficiaries,
without directing any benefit restrictions at individual participants and
beneficiaries based on a health factor? .....................................................................
 A plan is not required to provide any benefits, but benefits provided must be
uniformly available and any benefit restrictions must be applied uniformly to
all similarly situated individuals and cannot be directed at any individual
participants or beneficiaries based on a health factor. If benefit exclusions or
limitations are applied only to certain individuals based on a health factor, this
would violate ERISA section 702(a) and 29 CFR 2590.702(b)(2).
 Examples of plan provisions that would be permissible under ERISA section
702(a) include:
 A lifetime or annual limit on all benefits,
 A lifetime or annual limit on the treatment of a particular condition,
 Limits or exclusions for certain types of treatments or drugs,
 Limitations based on medical necessity or experimental treatment, and
 Cost-sharing,
if the limit applies uniformly to all similarly situated individuals and is not
directed at individual participants or beneficiaries based on a health factor.
 A plan amendment applicable to all similarly situated individuals and made
effective no earlier than the first day of the next plan year is not considered
directed at individual participants and beneficiaries. See 29 CFR 2590.702(b)
(2)(i)(C).
Question 24 – Source-of-injury restrictions
If the plan imposes a source-of-injury restriction, does it comply with the
HIPAA nondiscrimination provisions? . ...................................................................
 Plans may exclude benefits for the treatment of certain injuries based on the
source of that injury, except that plans may not exclude benefits otherwise
provided for treatment of an injury if the injury results from an act of domestic
violence or a medical condition. See 29 CFR 2590.702(b)(2)(iii). An example
of a permissible source-of-injury exclusion would include:
 A plan provision that provides benefits for head injuries generally, but
excludes benefits for head injuries sustained while participating in bungee
jumping, as long as the injuries do not result from a medical condition or
domestic violence.
 An impermissible source-of-injury exclusion would include:
 A plan provision that generally provides coverage for medical/surgical
benefits, including hospital stays that are medically necessary, but excludes
benefits for self-inflicted injuries or attempted suicide. This is impermissible
because the plan provision excludes benefits for treatment of injuries that
may result from a medical condition (depression).
 If the plan does not impose a source-of-injury restriction, check "N/A" and skip
to Question 25.
14

NO

N/A

YES
Question 25 – Nondiscrimination in premiums or contributions
Does the plan comply with HIPAA’s nondiscrimination rules regarding
individual premium or contribution rates? ................................................
 Under ERISA section 702(b) and 29 CFR 2590.702(c), plans may not require an
individual to pay a premium or contribution that is greater than a premium or contribution for a similarly situated individual enrolled in the plan on the basis of any
health factor. For example, it would be impermissible for a plan to require certain
full-time employees to pay a higher premium than other full-time employees based
on their prior claims experience.
 Nonetheless, the nondiscrimination rules do not prohibit a plan from providing a
reward based on adherence to a wellness program. See ERISA section 702(b)(2)
(B); 29 CFR 2590.702(b)(2)(ii) and (c)(3). Final rules for wellness programs were
published on December 13, 2006, at 71 FR 75014. These rules permit rewards that
are not contingent on an individual meeting a standard related to a health factor. In
addition, these rules permit rewards that are contingent on an individual meeting a
standard related to a health factor if:
 The total reward for all the plan’s wellness programs that require satisfaction
of a standard related to a health factor is limited – generally, it must not exceed
20 percent of the cost of employee-only coverage under the plan. If dependents
(such as spouses and/or dependent children) may participate in the wellness
program, the reward must not exceed 20 percent of the cost of the coverage in
which an employee and any dependents are enrolled.
 The program must be reasonably designed to promote health and prevent
disease.
 The program must give individuals eligible to participate the opportunity to
qualify for the reward at least once per year.
 The reward must be available to all similarly situated individuals. The program
must allow a reasonable alternative standard (or waiver of initial standard) for
obtaining the reward to any individual for whom it is unreasonably difficult due
to a medical condition, or medically inadvisable, to satisfy the initial standard.
 The plan must disclose in all materials describing the terms of the program the
availability of a reasonable alternative standard (or the possibility of a waiver
of the initial standard). A model notice is provided in the EBSA publication,
Health Benefits Coverage Under Federal Law.
To help evaluate whether this exception is available, refer to Section E on page 16.
Once you have completed Section E, return to this page to continue with Question 26,
below.
Question 26 – List billing
Is there compliance with the list billing provisions? .......................................
 Under 29 CFR 2590.702(c)(2)(ii), plans and issuers may not charge or quote an
employer a different premium for an individual in a group of similarly situated
individuals based on a health factor. This practice is commonly referred to as list
billing. If an issuer is list billing an employer and the plan is passing the separate
and different rates on to the individual participants and beneficiaries, both the
15

NO

N/A

YES
plan and the issuer are violating the prohibition against discrimination in
premium rates. This does not prevent plans and issuers from taking the health
factors of each individual into account in establishing a blended/aggregate rate
for providing coverage to the plan.
Question 27 – Nonconfinement clauses
Is the plan free of any nonconfinement clauses? . ....................................................
 Typically, a nonconfinement clause will deny or delay eligibility for some or
all benefits if an individual is confined to a hospital or other health care
institution. Sometimes nonconfinement clauses also deny or delay eligibility if
an individual cannot perform ordinary life activities. Often a nonconfinement
clause is imposed only with respect to dependents, but they may also be
imposed with respect to employees. 29 CFR 2590.702(e)(1) explains that these
nonconfinement clauses violate ERISA sections 702(a) (if the clause delays or
denies eligibility) and 702(b) (if the clause raises individual premiums).
Tip: Delete all nonconfinement clauses.
Question 28 – Actively-at-work clauses
Is the plan free of any impermissible actively-at-work clauses? ............................
 Typically, actively-at-work provisions delay eligibility for benefits based on
an individual being absent from work. 29 CFR 2590.702(e)(2) explains that
actively-at-work provisions generally violate ERISA sections 702(a) (if the
clause delays or denies eligibility) and 702(b) (if the clause raises individual
premiums or contributions), unless absence from work due to a health factor
is treated, for purposes of the plan, as if the individual is at work. Nonetheless,
an exception provides that a plan may establish a rule for eligibility that
requires an individual to begin work for the employer sponsoring the plan
before eligibility commences. Further, plans may establish rules for eligibility
or set any individual's premium or contribution rate in accordance with the
rules relating to similarly situated individuals in 29 CFR 2590.702(d). For
example, a plan that treats full-time and part-time employees differently for
other employment-based purposes, such as eligibility for other employee
benefits, may distinguish in rules for eligibility under the plan between fulltime and part-time employees.
Tip: Carefully examine any actively-at-work provision to ensure consistency with
HIPAA.
SECTION E – Compliance with the Wellness Program Provisions
Use the following questions to help determine whether the plan offers a program
of health promotion or disease prevention that is required to comply with the
Department’s final wellness program regulations and, if so, whether the program is
in compliance with the regulations.

16

NO

N/A

YES
Question 29 – Does the plan have a wellness program? . .......................................
 A wide range of wellness programs exist to promote health and prevent
disease. However, these programs are not always labeled “wellness programs.”
Examples include: a program that reduces individuals’ cost-sharing for
complying with a preventive care plan; a diagnostic testing program for health
problems; and rewards for attending educational classes, following healthy
lifestyle recommendations, or meeting certain biometric targets (such as
weight, cholesterol, nicotine use, or blood pressure targets).
Tip: Ignore the labels – wellness programs can be called many things. Other
common names include: disease management programs, smoking cessation
programs, and case management programs.
Question 30 – Is the wellness program part of a group health plan? ...................
 The wellness program is only subject to Part 7 of ERISA if it is part of a group
health plan. If the employer operates the wellness program as an employment
policy separate from the group health plan, the program may be covered by
other laws, but it is not subject to the group health plan rules discussed here.
Example: An employer institutes a policy that any employee who smokes will
be fired. Here, the plan is not acting, so the wellness program rules do not apply.
(But see 29 CFR 2590.702, which clarifies that compliance with the HIPAA
nondiscrimination rules, including the wellness program rules, is not determinative
of compliance with any other provision of ERISA or any other State or Federal law,
such as the Americans with Disabilities Act.)

Question 31 – Does the program discriminate based on a health factor?  ...........
 A plan discriminates based on a health factor if it requires an individual to meet a
standard related to a health factor in order to obtain a reward. A reward can be in
the form of a discount or rebate of a premium or contribution, a waiver of all or
part of a cost-sharing mechanism (such as deductibles, copayments, or
coinsurance), the absence of a surcharge, or the value of a benefit that would
otherwise not be provided under the plan.
Example 1: Plan participants who have a cholesterol level under 200 will receive a
premium reduction of 20 percent. In this Example 1, the plan requires individuals to
meet a standard related to a health factor in order to obtain a reward.
Example 2: A plan requires all eligible employees to complete a health risk
assessment to enroll in the plan. Employee answers are fed into a computer that
identifies risk factors and sends educational information to the employee’s home
address. In this Example 2, the requirement to complete the assessment does not,
itself, discriminate based on a health factor. However, if the plan used individuals’
specific health information to discriminate in individual eligibility, benefits, or
premiums, there would be discrimination based on a health factor.
17

NO

N/A

YES

NO

If you answered “No” to ANY of the above questions, STOP. The plan does not maintain a program
subject to the group health plan wellness program rules. If you are completing this section as part of a
review of your plan, please return to Question 26.
Question 32 – If the program discriminates based on a health factor,
is the program saved by the benign discrimination provisions?  .........................
 The Department’s regulations at 29 CFR 2590.702(g) permit discrimination in
favor of an individual based on a health factor.
Example: A plan grants participants who have diabetes a waiver of the plan’s
annual deductible if they enroll in a disease management program that consists
of attending educational classes and following their doctor’s recommendations
regarding exercise and medication. This is benign discrimination because the
program is offering a reward to individuals based on an adverse health factor.
Tip: The benign discrimination exception is NOT available if the plan asks
diabetics to meet a standard related to a health factor (such as maintaining a certain
body mass index (BMI)) in order to get a reward. In this case, an intervening
discrimination is introduced and the plan cannot rely solely on the benign
discrimination exception.
If you answered “Yes” to the previous question, STOP. There are no violations of the wellness program
rules. If you are completing this section as part of a review of your plan, please return to Question 26.
If you answered “No” to the previous question, the wellness program must meet the following
5 criteria.
Question 33 – Compliance Criteria
A. Is the amount of the reward offered under the plan limited to 20 percent of
the applicable cost of coverage? (29 CFR 2590.702(f)(2)(i))...............................
Keep in mind these considerations when analyzing the reward amount:
Who is eligible to participate in the wellness program?
If only employees are eligible to participate, the amount of the reward must
not exceed 20 percent of the cost of employee-only coverage under the plan. If
employees and any class of dependents are eligible to participate, the reward
must not exceed 20 percent of the cost of coverage in which an employee and any
dependents are enrolled.
Does the plan have more than one wellness program?
The 20 percent limitation on the amount of the reward applies to all of a plan’s
wellness programs that require individuals to meet a standard related to a health
factor.

18

N/A

YES
Example: If the plan has two wellness programs with standards related to a health
factor, a 20 percent reward for meeting a BMI target and a 10 percent reward for
meeting a cholesterol target, it must decrease the total reward available from 30
percent to 20 percent. However, if instead, the program offered a 10 percent reward
for meeting a body mass index target, a 10 percent reward for meeting a cholesterol
target, and a 10 percent reward for completing a health risk assessment (regardless
of any individual’s specific health information), the rewards do not need to be
adjusted because the 10 percent reward for completing the health risk assessment
does not require individuals to meet a standard related to a health factor.
B. Is the plan reasonably designed to promote health or prevent disease?
(29 CFR 2590.702(f)(2)(ii))  . ............................................................................
The program must be reasonably designed to promote health or prevent disease. The
program should have a reasonable chance of improving the health of or preventing
disease in participating individuals, not be overly burdensome, not be a subterfuge
for discriminating based on a health factor, and not be highly suspect in the method
chosen to promote health or prevent disease.
C. Are individuals who are eligible to participate given a chance to qualify
at least once per year? (29 CFR 2590.702(f)(2)(iii))  .....................................
D. Is the reward available to all similarly situated individuals? Does the
program offer a reasonable alternative standard?  (29 CFR 2590.702(f)
(2)(iv))  ...............................................................................................................
The wellness program rules require that the reward be available to all similarly
situated individuals. A component of meeting this criterion is that the program
must have a reasonable alternative standard (or waiver of the otherwise applicable
standard) for obtaining the reward for any individual for whom, for that period:

* It is unreasonably difficult due to a medical condition to satisfy the otherwise
applicable standard; or
* It is medically inadvisable to attempt to satisfy the otherwise applicable standard.
It is permissible for the plan or issuer to seek verification, such as a statement
from the individual’s physician, that a health factor makes it unreasonably
difficult or medically inadvisable for the individual to satisfy or attempt to satisfy
the otherwise applicable standard.
E. Does the plan disclose the availability of a reasonable alternative in all plan
materials describing the program?  (29 CFR 2590.702(f)(2)(v)) .....................
The plan or issuer must disclose the availability of a reasonable alternative standard
in all plan materials describing the program. If plan materials merely mention that
the program is available, without describing its terms, this disclosure is not required.
Tip: The disclosure does not have to say what the reasonable alternative standard
is in advance. The plan can individually tailor the standard for each individual, on a
case-by-case basis.
19

NO

N/A

YES

NO

The following sample language can be used to satisfy this requirement: “If it is
unreasonably difficult due to a medical condition for you to achieve the standards for
the reward under this program, or if it is medically inadvisable for you to attempt to
achieve the standards for the reward under this program, call us at [insert telephone
number] and we will work with you to develop another way to qualify for the
reward.”
If you answered “Yes” to all of the 5 questions on wellness program criteria, there are no violations of the
HIPAA wellness program rules.
If you answered “No” to any of the 5 questions on wellness program criteria, the plan has a wellness
program compliance issue. Specifically,
Violation of the general benefit discrimination rule (29 CFR 2590.702(b)(2)(i)) – If the wellness
program varies benefits, including cost-sharing mechanisms (such as deductible, copayment, or
coinsurance) based on whether an individual meets a standard related to a health factor and the program
does not satisfy the requirements of 29 CFR 2590.702(f), the plan is impermissibly discriminating in
benefits based on a health factor. The wellness program exception at 29 CFR 2590.702(b)(2)(ii) is not
satisfied and the plan is in violation of 29 CFR 2590.702(b)(2)(i).
Violation of general premium discrimination rule (29 CFR 2590.702(c)(1)) – If the wellness program
varies the amount of premium or contribution it requires similarly situated individuals to pay based on
whether an individual meets a standard related to a health factor and the program does not satisfy the
requirements of 29 CFR 2590.702(f), the plan is impermissibly discriminating in premiums based on a
health factor. The wellness program exception at 29 CFR 2590.702(c)(3) is not satisfied and the plan is in
violation of 29 CFR 2590.702(c)(1).

SECTION F – Compliance with the HMO Affiliation Period Provisions
If the plan provides benefits through an HMO and imposes an HMO affiliation period in lieu of a preexisting condition exclusion period, answer
Question 34. If the plan does not provide benefits through an HMO, or if
there is no HMO affiliation period, check "N/A" and go to Section G. .....................
Question 34 – HMO affiliation period provisions
Does the plan comply with the limits on HMO affiliation periods? . ....................
 An affiliation period is a period of time that must expire before health insurance
coverage provided by an HMO becomes effective and during which the HMO
is not required to provide benefits.
 A group health plan offering coverage through an HMO may impose an
affiliation period only if:
 No preexisting condition exclusion is imposed;
 No premium is charged to a participant or beneficiary for the affiliation
period;
 The affiliation period is applied uniformly without regard to any health
factor;
20

N/A

YES

 The affiliation period does not exceed 2 months (or 3 months for late
enrollees);
 The affiliation period begins on an individual's "enrollment date”; and
 The affiliation period runs concurrently with any waiting period.

See ERISA section 701(g); 29 CFR 2590.701-7.
SECTION G – Compliance with the MEWA or Multiemployer Plan
Guaranteed Renewability Provisions
If the plan is a multiple employer welfare arrangement (MEWA) or a
multiemployer plan, it is required to provide guaranteed renewability of
coverage in accordance with ERISA section 703. If the plan is a MEWA or
multiemployer plan, it must comply with Question 35. If the plan is not a
MEWA or multiemployer plan, check "N/A" and go to Part II of this
self-compliance tool.....................................................................................................
Question 35 – Multiemployer plan and MEWA guaranteed renewability
If the plan is a multiemployer plan, or a MEWA, does the plan provide
guaranteed renewability? .........................................................................................
 Group health plans that are multiemployer plans or MEWAs may not deny an
employer continued access to the same or different coverage, other than:
 For nonpayment of contributions;
 For fraud or other intentional misrepresentation by the employer;
 For noncompliance with material plan provisions;
 Because the plan is ceasing to offer coverage in a geographic area;
 In the case of a plan that offers benefits through a network plan, there is no
longer any individual enrolled through the employer who lives, resides, or
works in the service area of the network plan and the plan applies this
paragraph uniformly without regard to the claims experience of employers
or any health-related factor in relation to such individuals or dependents; or
 For failure to meet the terms of an applicable collective bargaining
agreement, to renew a collective bargaining or other agreement requiring or
authorizing contributions to the plan, or to employ employees covered by
such agreement.
See ERISA section 703.
**Note: The Public Health Service (PHS) Act contains different guaranteed renewability requirements for issuers.

21

NO

N/A

YES Health
NOParityN/A
II. Determining Compliance with the Mental Health Parity Act (MHPA) and Mental
and Addiction Equity Act (MHPAEA) Provisions in Part 7 of ERISA
If you answer “No” to any of the questions below, the group health plan is in violation
of the MHPA or MHPAEA (the mental health parity) provisions in Part 7 of ERISA.
YES
If the plan provides either mental health or substance use disorder benefits and
medical and surgical benefits, the plan may be subject to the mental health parity
provisions in Part 7 of ERISA. (Note, if under an arrangement(s) to provide medical
care by an employer or employee organization, any participant or beneficiary
can simultaneously receive coverage for medical/surgical benefits and mental
health benefits, the mental health requirements apply separately with respect to
each combination of medical/surgical benefits and mental health benefits and all
such combinations are considered to be a single group health plan. See 29 CFR
2590.712(e).) If this is the case, answer Questions 36-44.
If the plan does not provide mental health or substance use disorder benefits, check
“N/A” here and skip to Part III of this checklist. Also, the plan may be exempt from
the mental health parity provisions under the small employer (50 employees or
fewer) exception or the increased cost exception. (To be eligible for the increased
cost exception, the plan must have filed a notice with EBSA and notified participants
and beneficiaries.) If the plan is exempt, check “N/A” here and skip to Part III of this
checklist..............................................................................................................................
*NOTE: Any reference in this checklist to mental health benefits includes both
mental health and substance use disorder benefits.
Question 36 – Does the plan comply with the mental health parity provisions for
lifetime dollar limits on mental health benefits? . ....................................................
 A plan may not impose a lifetime dollar limit on mental health/substance use
disorder benefits that is lower than the lifetime dollar limit imposed on medical/
surgical benefits. See 29 CFR 2590.712(b). (Only limits on what the plan is
willing to pay are taken into account.)
Question 37 – Does the plan comply with the mental health parity provisions
for annual dollar limits on mental health benefits? ........................................
 A plan may not impose an annual dollar limit on mental health/substance use
disorder benefits that is lower than the annual dollar limit imposed on medical/
surgical benefits. See 29 CFR 2590.712(b). (Only limits on what the plan is
willing to pay are taken into account.)
Tip: There is a different rule for cumulative limits other than aggregate lifetime
or annual dollar limits, discussed later in this checklist at question 41. A plan may
impose annual dollar out-of-pocket limits on participants and beneficiaries if done in
accordance with the rule regarding cumulative limits.

22

NO

N/A

YES
Question 38 – Does the plan comply with the mental health parity provisions
for parity in financial requirements and quantitative treatment limitations?......
 A plan may not impose a financial requirement or quantitative treatment
limitation applicable to mental health/substance use disorder benefits in any
classification that is more restrictive than the predominant financial requirement
or quantitative treatment limitation of that type applied to substantially all
medical/surgical benefits in the same classification. See 29 CFR 2590.712(c)(2).
 Types of financial requirements include deductibles, copayments,
coinsurance, and out-of-pocket maximums. See 29 CFR 2590.712(c)(1)(ii).
 Types of quantitative treatment limits include annual, episode, and lifetime
day and visit limits, for example, number of treatments, visits, or days of
coverage. See 29 CFR 2590.712(c)(1)(ii).
 The six classifications of benefits are:
1) inpatient, in-network;
2) inpatient, out-of-network;
3) outpatient, in-network;
4) outpatient, out-of-network;
5) emergency care; and
6) prescription drugs
See 29 CFR 2590.712(c)(2)(ii).
 Under the plan, any financial requirement or quantitative treatment limitation
that applies to mental health benefits within a particular classification cannot be
more restrictive than the predominant requirement or limitation that applies to
substantially all medical/surgical benefits within the same classification. See 29
CFR 2590.712(c)(2).
(Note, see below discussion of enforcement safe harbor for determining parity
with respect to outpatient benefits provided under two sub-classifications.)
 To determine parity each type of financial requirement or treatment limitation
within a coverage unit (Coverage unit refers to the way in which a plan
groups individuals for purposes of determining benefits, or premiums or
contributions, for example, self-only, family, employee plus spouse. See
29 CFR 2590.712(c)(1)(iv).) must be analyzed separately within each
classification. See 29 CFR 2590.712(c)(2)(i). If a plan applies different
levels of a financial requirement or treatment limitation to different coverage
units in a classification of medical/surgical benefits (for example, a $250
deductible for self-only and a $500 deductible for family coverage), the
predominant level is determined separately for each coverage unit. See 29
CFR 2590.712(c)(3)(ii).
 Generally, a financial requirement or treatment limitation is considered to
apply to substantially all medical/surgical benefits if it applies to two-thirds
or more of the medical/surgical benefits. See 29 CFR 2590.712(c)(3)(i)(A).
This two-thirds calculation is based on the dollar amount of plan payments
expected to be paid for the year. See 29 CFR 2590.712(c)(3)(i)(C). (Any
reasonable method can be used for this calculation. See 29 CFR 2590.712(c)
(3)(i)(E).)

23

NO

N/A

YES
 Generally, the predominant level will apply to more than one-half of the
medical/surgical benefits in that classification subject to the requirement or
limitation. See 29 CFR 2590.712(c)(3)(i)(B)(1). If there is no single level
that applies to one-half of medical/surgical benefits in the classification, the
plan can combine levels until the combination of levels applies to more than
one-half of medical/surgical benefits subject to the requirement or limitation
in the classification. The least restrictive level within the combination is
considered the predominant level. See 29 CFR 2590.712(c)(3)(i)(B)(2).
Safe Harbor:
 Until the issuance of final regulations, for purposes of determining parity for
outpatient benefits (in-network and out-of network), the Departments have
established an enforcement safe harbor under which no enforcement action
will be taken against a plan or issuer that divides its benefits furnished on an
outpatient basis into two sub-classifications, specifically 1) office visits and 2)
all other outpatient items and services, for purposes of applying the financial
requirement and treatment limitation rules under MHPAEA.
 After the sub-classifications are established, the plan or issuer may not
impose any financial requirement or treatment limitation on mental
health or substance use disorder benefits in any sub-classification
(i.e., office visits or non-office visits) that is more restrictive than the
predominant financial requirement or treatment limitation that applies to
substantially all medical/surgical benefits in the sub-classification using
the methodology set forth in the interim final rules.
 Other than as permitted under this enforcement policy, and except as
permitted under the interim final rules for multi-tier prescription drug
formularies, sub-classifications are not permitted when applying the
financial requirement and treatment limitation rules under MHPAEA.
Accordingly, and as stated in the preamble to the interim final rules,
separate sub-classifications for generalists and specialists are not
permitted.
Tips: Ensure that the plan does not impose cost-sharing requirements or quantitative
treatment limitations that are applicable only to mental health/substance use disorder
benefits.
For a simpler method of compliance when a type of financial requirement or
treatment limitation applies to at least two-thirds of medical surgical benefits in the
classification, but no single level is predominant, a plan can treat the least restrictive
level of financial requirement or treatment limitation applied to medical/surgical
benefits as predominant.

24

NO

N/A

YES
Question 39 – Does the plan comply with the mental heath parity provisions for
parity in classifications of benefits? .........................................................................
 If a plan provides mental health or substance use disorder benefits in any classification of benefits (The classifications are listed in question 32.), mental health
or substance use disorder benefits must be provided in every classification in
which medical/surgical benefits are provided. See 29 CFR 2590.712(c)(2)(ii)
(A).
 In determining the classification in which a particular benefit belongs, a plan
must apply the same standards to medical/surgical benefits and to mental health
or substance use disorder benefits. See 29 CFR 2590.712(c)(2)(ii)(A).
Tip: This rule applies to out-of-network providers. If the plan does not contract
with a network of providers, all benefits are out-of-network. If a plan that has
no network imposes a financial requirement or treatment limitation on in-patient
or outpatient benefits, the plan is imposing the requirement or limitation within
classifications (inpatient, out-of-network or outpatient, out-of-network), and the rules
for parity will be applied separately for the different classifications. See 29 CFR
2590.712(c)(2)(ii)(B).
Question 40 – Does the plan comply with the mental health parity provisions
for multi-tiered prescription drug benefits? .........................................................
 There is a special rule for multi-tiered prescription drug benefits. A plan
complies with the mental health parity provisions if the plan applies different
levels of financial requirements to different tiers of prescription drug benefits
based on reasonable factors (determined in accordance with the mental health
provisions relating to nonquantitative treatment limitations discussed in this
checklist at question 42) and without regard to whether a drug is generally
prescribed for medical/surgical or mental health benefits. Reasonable factors
include cost, efficacy, generic versus brand name, and mail order versus
pharmacy pick-up. See 29 CFR 2590.712(c)(3)(iii).
Question 41 – Does the plan comply with the mental health parity provisions
on cumulative financial requirements or cumulative quantitative treatment
limitations? ...............................................................................................................
 A plan may not apply any cumulative financial requirement or cumulative
quantitative treatment limitation (for example a $250 deductible) for mental health
benefits in a classification that accumulates separately from any established for
medical/surgical benefits in the same classification. See 29 CFR 2590.712(c)(3)(v).

25

NO

N/A

YES
Question 42 – Does the plan comply with the mental health parity provisions for
parity within nonquantitative treatment limitations? . ..........................................
 Nonquantitative treatment limitations include:
 medical management standards limiting or excluding benefits based on
medical necessity or medical appropriateness, or based on whether the
treatment is experimental or investigative;
 formulary design for prescription drugs;
 standards for provider admission to participate in a network, including
reimbursement rates;
 plan methods for determining usual, customary, and reasonable charges;
 refusal to pay for higher-cost therapies until it can be shown that a lowercost therapy is not effective (also known as fail-first policies or step therapy
protocols); and
 exclusions based on failure to complete a course of treatment.
This is an illustrative, nonexhaustive list. See 29 CFR 2590.712(c)(4)(ii).
 A plan may not impose a nonquantitative treatment limitation with respect
to mental health or substance use disorder benefits in any classification (such
as inpatient, out-of-network) unless under the terms of the plan, as written or
in operation, any processes, strategies, evidentiary standards, or other factors
used in applying the limitation to mental health benefits in the classification
are comparable to and applied no more stringently than the processes,
strategies, evidentiary standards or other factors used in applying the limitation
with respect to medical/surgical benefits in the classification, except to the
extent that recognized clinically appropriate standards of care may permit a
difference. See 29 CFR 2590.712(c)(4)(i).
 An example of a permissible nonquantitative treatment limitation would
be a plan requirement that participants obtain prior approval that a course
of treatment is medically necessary for out-patient, in-network medical/
surgical and mental health benefits. The plan denies payment for any
medical/surgical or mental health treatments that did not have prior
approval. See 2590.712(c)(4)(iii).
 An example of an impermissible nonquantitative treatment limitation
would be a plan requirement that participants obtain prior approval that
a course of treatment is medically necessary for out-patient, in-network
medical/surgical and mental health benefits. The plan denies payment for
mental health treatments that did not receive prior approval. However, for
medical/surgical benefits that did not have prior approval, the plan pays
for the treatments at a 25 percent reduction in benefits the plan would
otherwise pay. See 2590.712(c)(4)(iii).
Tip: Do not focus on results. Look at the processes used in applying
nonquantitative limitations to mental health and medical/surgical benefits to
determine that there are not arbitrary, discriminatory differences and that any
differences in processes are based on recognized, clinically appropriate standards.

26

NO

N/A

YES
Question 43 – Does the plan comply with the mental health parity provisions
requiring the availability of plan information regarding criteria for medical
necessity determinations?........................................................................................
 The plan administrator (or the health insurance issuer) must make available the
criteria for medical necessity determinations made under a group health plan with
respect to mental health or substance use disorder benefits (or health insurance
coverage offered in connection with the plan with respect to such benefits) to any
current or potential participant, beneficiary, or contracting provider upon request.
See 29 CFR 2590.712(d)(1).
Question 44 – Does the plan comply with the mental health parity provisions
requiring the availability of plan information regarding the reason for a denial
of reimbursement or payment ?..............................................................................
 The plan administrator (or health insurance issuer) must make available the
reason for any denial under a group health plan (or health insurance coverage) of
reimbursement or payment for services with respect to mental health or substance
use disorder benefits to any participant or beneficiary in a form and manner
consistent with the rules in 2560.503-1(The Claims Procedure Rule). See 29
CFR 2590.712(d)(2).

27

NO

N/A

YES
NO
III. Determining Compliance with the Newborns' Act Provisions in Part 7 of ERISA

N/A

If you answer "No" to any of the questions below, the group health plan
is in violation of the Newborns' Act provisions in Part 7 of ERISA.
YES
Section A – Newborns' Act Substantive Provisions
The substantive provisions of the Newborns' Act apply only to certain plans, as
follows:
If the plan does not provide benefits for hospital stays in connection with childbirth,
check "N/A" and go to Part IV of this self-compliance tool. (Note: Under the Pregnancy Discrimination Act, most plans are required to cover maternity benefits.)...........
Special applicability rule for insured coverage that provides benefits for hospital
stays in connection with childbirth:
If the plan provides benefits for hospital stays in connection with childbirth, the plan
is insured, and the coverage is in Wisconsin and several U.S. territories, it appears
that the Federal Newborns' Act applies to the plan. If this is the case, answer the
questions in SECTION A and SECTION B.
If the plan provides benefits for hospital stays in connection with childbirth and is
insured, whether the plan is subject to the Newborns' Act depends on State law.
Based on a recent preliminary review of State laws, if the coverage is in any other
state or the District of Columbia, it appears that State law applies in lieu of the
Federal Newborns' Act. If this is the case, check "N/A" and skip to
SECTION B ..................................................................................................................
Self-insured coverage that provides benefits for hospital stays in connection with
childbirth: If the plan provides benefits for hospital stays in connection with childbirth and is self-insured, the Federal Newborns' Act applies. Answer the questions in
SECTION A and SECTION B.
Question 45 – General 48/96-hour stay rule
Does the plan comply with the general 48/96-hour rule? ........................................
 Plans generally may not restrict benefits for a hospital length of stay in connection with childbirth to less than 48 hours in the case of a vaginal delivery (See
ERISA section 711(a)(1)(A)(i)), or less than 96 hours in the case of a cesarean
section (See ERISA section 711(a)(1)(A)(ii)).
 Therefore, a plan cannot deny a mother or her newborn benefits within a 48/96hour stay based on medical necessity. (A plan may require a mother to notify
the plan of a pregnancy to obtain more favorable cost-sharing for the hospital
stay. This second type of plan provision is permissible under the Newborns' Act
if the cost-sharing is consistent throughout the 48/96-hour stay.)
 An attending provider may, however, decide, in consultation with the mother, to
discharge the mother or newborn earlier.
28

NO

N/A

YES
Question 46 – Provider must not be required to obtain authorization
from plan
Plans may not require providers to obtain authorization from the plan to
prescribe a 48/96-hour stay. Does the plan comply with this rule? . ...................
 Plans may not require that a provider (such as a doctor) obtain authorization
from the plan to prescribe a 48/96-hour stay. See ERISA section 711(a)(1)(B);
29 CFR 2590.711(a)(4).
Tips: Watch for plan preauthorization requirements that are too broad. For example, a plan may have a provision requiring preauthorization for all hospital stays.
Providers cannot be required to obtain preauthorization from the plan in order for
the plan to cover a 48-hour (or 96-hour) stay in connection with childbirth. Therefore, in this example, the plan must add clarifying language to indicate that the
general preauthorization requirement does not apply to 48/96-hour hospital stays in
connection with childbirth. (Conversely, plans generally may require participants
or beneficiaries to give notice of a pregnancy or hospital admission in connection
with childbirth in order to obtain, for example, more favorable cost-sharing.)
Nonetheless, the Newborns’ Act does not prevent plans and issuers from requiring
providers to obtain authorization for any portion of a hospital stay that exceeds 48
(or 96) hours.
Question 47 – Incentives/penalties to mothers or providers
Does the plan comply with the Newborns' Act by avoiding impermissible
incentives or penalties with respect to mothers or attending providers? .............
 Penalties to attending providers to discourage 48/96-hour stays violate ERISA
section 711(b)(3) and 29 CFR 2590.711(b)(3)(i).
 Incentives to attending providers to encourage early discharges violate ERISA
section 711(b)(4) and 29 CFR 2590.711(b)(3)(ii).
 Penalties imposed on mothers to discourage 48/96-hour stays violate ERISA
section 711(b)(1) and 29 CFR 2590.711(b)(1)(i)(A).
 Incentives to mothers to encourage early discharges violate ERISA section
711(b)(2) and 29 CFR 2590.711(b)(1)(i)(B).
 An example of this would be if the plan waived the mother's copayment or
deductible if mother or newborn leaves within 24 hours.
 Benefits and cost-sharing may not be less favorable for the latter portion of
any 48/96-hour hospital stay. In this case less favorable benefits would violate
ERISA section 711(b)(5) and 29 CFR 2590.711(b)(2) and less favorable costsharing would violate ERISA section 711(c)(3) and 29 CFR 2590.711(c)(3).

29

NO

N/A

YES
SECTION B – Disclosure Provisions
Group health plans that provide benefits for hospital stays in connection with
childbirth are required to make certain disclosures, as follows:
Question 48 – Disclosure with respect to hospital lengths of stay in
connection with childbirth
Does the plan comply with the notice provisions relating to hospital stays in
connection with childbirth? .....................................................................................
 Group health plans that provide benefits for hospital stays in connection with
childbirth are required to make certain disclosures. Specifically, the group
health plan’s SPD must include a statement describing any requirements under
Federal or State law applicable to the plan, and any health insurance coverage
offered under the plan, relating to hospital length of stay in connection with
childbirth for the mother or newborn child. See the SPD content regulations
at 29 CFR 2520.102-3(u).
Tips: Whether the plan is insured or self-insured, and whether the Federal Newborns’ Act provisions or State law provisions apply to the coverage, the plan must
provide a notice describing any requirements relating to hospital length of stays in
connection with childbirth. A model notice is provided in the EBSA publication,
Health Benefits Coverage Under Federal Law.

30

NO

N/A

IV. Determining Compliance with the WHCRA Provisions in Part 7 of ERISA
YES

NO

N/A

NO

N/A

If you answer "No" to any of the questions below, the group health plan
is in violation of the WHCRA provisions in Part 7 of ERISA.
YES

WHCRA applies only to plans that offer benefits with respect to a mastectomy. If
the plan does not offer these benefits, check "N/A" and go to Part V of this selfcompliance tool.............................................................................................................
If the plan does offer benefits with respect to a mastectomy, answer
Questions 49-52.
Question 49 – Four required coverages under WHCRA
Does the plan provide the four coverages required by WHCRA? .......................
 In the case of a participant or beneficiary who is receiving benefits in
connection with a mastectomy, the plan shall provide coverage for the
following benefits for individuals who elect them:
 All stages of reconstruction of the breast on which the mastectomy has been
performed;
 Surgery and reconstruction of the other breast to produce a symmetrical
appearance;
 Prostheses; and
 Treatment of physical complications of mastectomy, including lymphedema,
in a manner determined in consultation with the attending provider and the
patient. See ERISA section 713(a).
 These required coverages can be subject to annual deductibles and coinsurance
provisions if consistent with those established for other medical/surgical
benefits under the plan or coverage.
Tip: Plans that cover benefits for mastectomies cannot categorically exclude
benefits for reconstructive surgery or certain post-mastectomy services. In addition,
time limits for seeking treatment may run afoul of the general requirement to
provide the four required coverages.
Question 50 – Incentive provisions
Does the plan comply with WHCRA by not providing impermissible incentives or penalties with respect to patients or attending providers? . ...............
 A plan may not deny a patient eligibility to enroll or renew coverage solely to
avoid WHCRA's requirements under ERISA section 713(c)(1).
 In addition, under ERISA section 713(c)(2), a plan may not penalize or offer
incentives to an attending provider to induce the provider to furnish care in a
manner inconsistent with WHCRA.

31

YES
Question 51 – Enrollment notice
Does the plan provide adequate and timely enrollment notices as required
by WHCRA? .............................................................................................................
 Upon enrollment, a plan must provide a notice describing the benefits required
under WHCRA. See ERISA section 713(a).
 The enrollment notice must describe the benefits that WHCRA requires the
group health plan to cover, specifically:
 All stages of reconstruction of the breast on which the mastectomy was
performed,
 Surgery and reconstruction of the other breast to produce a symmetrical
appearance,
 Prostheses, and
 Physical complications resulting from mastectomy (including lymphedema).
 The enrollment notice must describe any deductibles and coinsurance limitations
applicable to such coverage. (Note: Under WHCRA, coverage of the required
benefits may be subject only to deductibles and coinsurance limitations
consistent with those established for other medical/surgical benefits under the
plan or coverage.)
Tip: A model notice is provided in the EBSA publication, Health Benefits Coverage
Under Federal Law.
Question 52 – Annual notice
Does the plan provide adequate and timely annual notices as required by
WHCRA? ..................................................................................................................
 Plans must provide notices describing the benefits required under WHCRA once
each year. See ERISA section 713(a).
 To satisfy this requirement, the plan may redistribute the WHCRA enrollment
notice or the plan may use a simplified disclosure that:
 Provides notice of the availability of benefits under the plan for reconstructive
surgery, surgery to achieve symmetry between the breasts, prostheses, and
physical complications resulting from mastectomy (including lymphedema);
and
 Contact information (e.g., telephone number) for obtaining a detailed
description of WHCRA benefits available under the plan.
Tip: The WHCRA annual notice can be provided in the SPD if the plan distributes
SPDs annually. If not, the plan should break off the annual notice into a separate
disclosure. A model notice is provided in the EBSA publication, Health Benefits
Coverage Under Federal Law.

32

NO

N/A

V. Determining Compliance with the GINA Provisions in Part 7 of ERISA
If you answer "No" to any of the questions below, the group health plan
is in violation of the GINA provisions in Part 7 of ERISA.
YES
Unlike HIPAA, the GINA provisions generally do apply to very small health plans (plans
with less than two participants who are current employees), including retiree-only health
plans.
Definitions (for all defined terms under GINA, see 29 CFR 2590.702-1(a)):
Genetic information means, with respect to an individual, information about the
individual’s genetic tests, the genetic tests of family members of the individual, the
manifestation (see definition below) of a disease or disorder in family members of the
individual or any request for or receipt of genetic services or participation in clinical
research which includes genetic services by the individual or any family member of the
individual.
 Genetic information includes, with respect to a pregnant woman or family
member of the pregnant woman, genetic information of any fetus carried by the
pregnant woman.
 Genetic information includes, with respect to an individual who is utilizing an
assisted reproductive technology, genetic information of any embryo legally
held by the individual or family member.
 Genetic information does NOT include information about the sex or age of any
individual.
Family member means, with respect to an individual, a dependent of the individual or any
person who is a first-degree, second-degree, third-degree, or fourth-degree relative of the
individual or a dependent of the individual. Relatives of affinity (such as by marriage
or adoption) are treated the same as relatives by consanguinity (that is, relatives who
share a common biological ancestor). Relatives by less than full consanguinity (such
as half-siblings, who share only one parent) are treated the same as relatives by full
consanguinity (such as siblings who share both parents). Therefore, family members
include parents, spouses, siblings, children, grandparents, grandchildren, aunts, uncles,
nephews, nieces, great-grandparents, great-grandchildren, great aunts, great uncles, first
cousins, great-great grandparents, great-great grandchildren, and children of first cousins.
Manifestation means, with respect to a disease, disorder, or pathological condition, that
an individual has been or could reasonably be diagnosed with the disease, disorder,
or pathological condition by a health care professional with appropriate training and
expertise in the field of medicine involved. A disease, disorder, or pathological condition
is not manifested if a diagnosis is based principally on genetic information.
Genetic services means a genetic test, genetic counseling (including obtaining,
interpreting, or assessing genetic information) or genetic education.
Genetic test means an analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, if the analysis detects genotypes, mutations, or chromosomal changes.
33

NO

N/A

YES
A genetic test does NOT include an analysis of proteins or metabolites that is
directly related to a manifested disease, disorder, or pathological condition. For
example, a test to determine whether an individual has a BRCA1 or BRCA2,
genetic variants associated with a significantly increased risk for breast cancer, is a
genetic test. An HIV test, complete blood count, cholesterol test, liver function test, or
test for the presence of alcohol or drugs is not a genetic test.
Question 53 – Does the plan comply with GINA’s prohibition against groupbased discrimination based on genetic information? .........................................
 A group health plan cannot adjust premium or contribution amounts for the
plan, or any similarly situated individuals under the plan, on the basis of genetic
information. See 29 CFR 2590.702-1(b)(1).
 Nothing limits a plan from increasing the premium for the group health plan
or for a group of similarly situated individuals under the plan based on the
manifestation of a disease or disorder of an individual enrolled in the plan.
However, the manifestation of the disease in one individual cannot be used as
genetic information about other group members to further increase the premium
for a group health plan or a group of similarly situated individuals under the
plan. See 29 CFR 2590.702-1(b)(2).
Question 54 – Does the plan comply with GINA’s limitation on
requesting or requiring genetic testing? . ................................................................
 A group health plan generally must not request or require an individual or family
member of the individual to undergo a genetic test. See 29 CFR 2590.702-1(c)
(1).
 Exceptions:
 A health care professional who is providing health care services to an
individual can request that the individual undergo a genetic test. See 29 CFR
2590.702-1(c)(2).
 A plan can obtain and use the results of a genetic test for making a
determination regarding payment. However, the plan is permitted to
request only the minimum amount of information necessary to make the
determination. See 29 CFR 2590.702-1(c)(4).
 Exception for research: a plan or issuer may request, but not require, that a
participant or beneficiary undergo a genetic test if the request is pursuant to
research and several conditions are met. See 29 CFR 2590.702-1(c)(5).
Question 55 – Does the plan comply with GINA’s prohibition on collection of
genetic information, prior to or in connection with enrollment?.............................
 A plan cannot collect genetic information prior to an individual’s effective date
of coverage under that plan or coverage, nor in connection with the rules for
eligibility that apply to that individual. See 29 CFR 2590.702-1(d)(2)(i).
 Whether or not an individual’s information is collected prior to that individual’s
effective date of coverage is determined at the time of collection.
 Exception for incidental collection:
34

NO

N/A

YES
 If a plan obtains genetic information incidental to the collection of other
information concerning any individual, the collection is not a violation,
as long as the collection is not for underwriting purposes. See 29 CFR
2590.702-1(d)(2)(ii)(A).
 However, the incidental collection exception does not apply in connection
with any collection where it is reasonable to anticipate that health
information would be received, unless the collection explicitly states that
genetic information should not be provided. See 29 CFR 2590.702-1(d)(2)
(ii)(B).
Question 56 – Does the plan comply with GINA’s prohibition on
collection of genetic information, for underwriting purposes? .............................
 A plan cannot request, require, or purchase (“collect”) genetic information for
underwriting purposes. See 29 CFR 2590.702-1(d)(1)(i).
 Underwriting purposes means, with respect to any group health plan:
 Rules for determination of eligibility (including enrollment and continued
eligibility) for benefits under the plan or coverage (including changes in
deductibles or other cost-sharing mechanisms in return for activities such as
completing a health risk assessment or participating in a wellness program);
 The computation of premium or contribution amounts under the plan or
coverage (including discounts, rebates, payments in kind, or other premium
differential mechanisms in return for activities such as completing a health
risk assessment or participating in a wellness program);
 The application of any preexisting condition exclusion under the plan or
coverage; and
 Other activities related to the creation, renewal, or replacement of a contract
of health insurance or health benefits. See 29 CFR 2590.702-1(d)(1)(ii).
 Exception for medical appropriateness (only if an individual seeks a benefit
under the plan):
 If an individual seeks a benefit under a plan, the plan may limit or exclude
the benefit based on whether the benefit is medically appropriate and the determination of whether the benefit is medically appropriate is not for underwriting purposes.
 If a plan conditions a benefit on medical appropriateness, and medical appropriateness depends on the genetic information of an individual, the plan
can condition the benefit on genetic information. A plan or issuer is permitted to request only the minimum amount of genetic information necessary to
determine medical appropriateness. See 29 CFR 2590.702-1(d)(1)(iii) and
(e).
If you answered “Yes” to ALL of the above questions, there are no violations of the
GINA regulations.

35

NO

N/A

VI. Compliance with Michelle’s Law
If you answer “No” to any of the questions below, the group health plan is in violation
of the Michelle’s Law provisions in Part 7 of ERISA.
YES
**Note: Under the Affordable Care Act group health plans and issuers are
generally required to provide dependent coverage to age 26 regardless of student
status of the dependent. Nonetheless, under some circumstances, such as a plan
that provides dependent coverage beyond age 26, Michelle’s Law provisions may
apply.
Question 57—Does the plan comply with the Michelle’s Law requirement not
to terminate coverage of dependent students on medically necessary leave of
absence?....................................................................................................................
Medically necessary leave of absence means with respect to a dependent child
in connection with a group health plan or health insurance coverage offered in
connection with a group health plan, a leave of absence from or other change in
enrollment status in a postsecondary educational institution that begins while the
child is suffering from a serious illness or injury; is medically necessary; and causes
the child to lose student status for purposes of coverage under the terms of the plan
or coverage.
A dependent child is a beneficiary who is a dependent child under the terms of
the plan or coverage, of a participant or beneficiary under the plan or coverage
and who was enrolled in the plan or coverage on the basis of being a student at
a postsecondary educational institution immediately before the first day of the
medically necessary leave of absence involved.
 A group health plan or issuer shall not terminate coverage of a dependent child
due to a medically necessary leave of absence that causes the child to lose student status before the date that is the earlier of:
 the date that is one year after the first day of the medically necessary leave of
absence; or
 the date on which such coverage would otherwise terminate under the terms of
the plan or health insurance coverage. See ERISA section 714(b).
Tip: The group health plan or issuer can require receipt of written certification by a
treating physician of the dependent child which states that the dependent child is suffering from a serious illness or injury and that the leave of absence (or other change
of enrollment) is medically necessary.
Question 58—Does the plan comply with Michelle’s Law’s notice requirement? . .....
 A group health plan or issuer must include with any notice regarding a
requirement for certification of student status for coverage, a description of the
Michelle’s law provision for continued coverage during medically necessary
leaves of absence. See ERISA section 714(c).

36

NO

N/A