DOL Seeks to Bring Group Health Plan Communications into the Digital Age
The U.S. Department of Labor (“DOL”) has proposed a new safe harbor option for group health plans to provide required disclosures electronically. Currently, many health plan notices are still delivered through paper mailings, which can be costly and administratively burdensome. While there is an existing safe harbor permitting employers to deliver ERISA notices electronically, the current safe harbor only applies to employees who are “wired at work” (meaning that they have regular access to the employer’s electronic information system as an integral part of their job duties), or to participants and beneficiaries who affirmatively consent to receiving disclosures electronically. The DOL adopted a more flexible “notice and access” safe harbor in 2020, but the 2020 safe harbor only applies to retirement plans. The new proposed safe harbor for group health plans largely mirrors the 2020 safe harbor, with a few important differences.
Under the proposed safe harbor, any document or information required to be furnished by a group health plan under Title I of ERISA is a covered document which may be provided digitally. This includes summary plan descriptions, summaries of benefits and coverage, COBRA notices, and many other documents. The proposed safe harbor would be available for any participants, beneficiaries, and other covered individuals who provide an email address or smartphone number capable of receiving electronic notices, not just those who are “wired at work.” Employees who are assigned an employer electronic email address for employment-related purposes are deemed to have provided that address for these purposes.
Similar to the 2020 safe harbor, the proposed rule permits plan administrators to post covered documents on a website after providing an initial Notice of Internet Availability (“NOIA”). Unlike the 2020 safe harbor, the proposed rule does not permit a plan administrator to directly email covered documents to participants and beneficiaries, citing HIPAA privacy concerns relating to email security. The NOIA may be provided on paper or—unlike the 2020 safe harbor—it may be provided electronically to those individuals covered by the existing safe harbor (i.e., those who are “wired at work” or who have affirmatively consented). The proposed rule permits covered individuals to request free paper copies of any covered documents or to opt out of electronic delivery entirely.
It is important to note that—just like the 2020 safe harbor—the proposed rule creates an additional option and does not supplant any existing options, such as the existing electronic disclosure safe harbor or traditional paper delivery methods. However, at least in current form, the proposed rule applies only to group health plans; it does not apply to other welfare benefit plans (e.g., disability or life insurance).
The proposed rule reflects the DOL’s view that the current electronic disclosure rules have not kept pace with modern communication practices. It provides a more flexible framework that takes into consideration how individuals increasingly access information online and through mobile devices.
The proposal could significantly reduce printing and mailing costs associated with health plan notices and disclosures. If adopted, plans choosing to rely on the new safe harbor would still have some administrative costs, such as establishing procedures for maintaining electronic contact information, addressing undeliverable notices, ensuring documents remain accessible and searchable online, protecting confidentiality, and honoring requests for paper copies or opt-outs from electronic delivery. Nonetheless, the proposed rule is intended to provide a broader and more user-friendly electronic delivery option for group health plans. The 60-day notice-and-comment period ends September 21, 2026.
We will continue to monitor the status of the proposed rule. Should you have any questions or want more information, please reach out to the authors of this alert or your Miller Canfield attorney.
