New Electronic Disclosure Safe Harbor for Group Health Plans

The U.S. Department of Labor (DOL) has proposed regulations that would significantly modernize the options employers and group health plans have for providing required ERISA disclosures to participants. If finalized, the proposal would establish a new optional electronic disclosure safe harbor that allows employers to provide many required health plan notices through secure websites or employee benefit portals instead of relying primarily on paper distributions. The earliest the new safe harbor could become effective is January 1, 2027.

Why Is This Important?

If finalized, the proposed safe harbor could help employers:

• Reduce the cost and administrative burden of printing and mailing required health plan notices.
• Use secure employee portals and benefits websites as the primary method for delivering many ERISA-required disclosures.
• Gain a clearer compliance framework for electronic delivery while maintaining important participant protections.
• Better align benefit communications with the way employees access information today through online and mobile platforms.

What Would Change?

Under the proposed safe harbor, employers could post required health plan documents on a secure website, benefits portal, or mobile application and notify participants that the documents are available online.

The proposal would apply to a wide range of ERISA-required health plan disclosures, including:

• Summary Plan Descriptions (SPDs)
• Summaries of Material Modifications (SMMs)
• COBRA notices
• HIPAA notices
• Claims notices
• Other ERISA-required health plan disclosures, including certain documents currently provided only upon request

Covered individuals would include employees, beneficiaries, and other individuals entitled to receive plan documents who provide an electronic address or are assigned a work email address. Adult dependent children who provide an electronic address could also receive electronic disclosures.

Notice of Internet Availability (NOIA)

The proposed rule generally would not allow employers to simply email required documents to participants. Instead, employers would provide a Notice of Internet Availability (NOIA) directing participants to the secure website where the document is posted. The DOL cited privacy concerns involving protected health information (PHI) as the reason for requiring this approach.

Each NOIA would generally need to include:

• A prominent heading such as “Disclosure About Your Health Plan”
• A statement that important health plan information is available
• Identification of the document by name
• A website address or hyperlink to the document
• Instructions for requesting a free paper copy
• Information explaining the participant’s right to opt out of electronic delivery
• A statement that the document generally will remain available online for at least one year (or until replaced)
• The plan administrator’s telephone number

Website Requirements

To qualify for the safe harbor, employers would need to ensure that documents are:

• Posted by the date they are otherwise required under ERISA
• Available online for at least one year (or until superseded)
• Readable online and printable
• Electronically searchable
• Downloadable and retainable
• Protected by appropriate security measures to safeguard participant information

Participant Rights Remain Protected

The proposal preserves important participant protections. Before relying on the new safe harbor, employers generally would need to provide an initial paper notice explaining the electronic delivery process.

Participants would continue to have the right to request free paper copies of any covered document at any time. They could also opt out of electronic delivery and continue receiving paper notices.

What Employers Should Do Now

The regulations are only proposed, so employers should not change their disclosure procedures yet. However, now is a good time to prepare by confirming employee and dependent electronic contact information.

If finalized, these regulations could significantly simplify electronic delivery of health plan notices while maintaining important protections for participants. Employers should monitor the progress of the proposed rule and be prepared to evaluate their current disclosure practices once final guidance is issued.