The 2002 electronic disclosure safe harbor

In 2002, when DOL last set the electronic disclosure safe harbor that health plans still live under, Gmail did not exist. Facebook did not exist. The iPhone was five years away. The BlackBerry had just learned how to make a phone call.

That is the technology baseline your SPD delivery rules were written against.

This morning EBSA published 29 CFR 2520.104b-32 (91 FR 46602). It extends the 2020 pension notice-and-access model to group health plans. Post the document to a website or app, send a notice of internet availability, and default electronic delivery works. Overdue and welcome; DOL says this cuts disclosure materials and mailing costs by nearly 70 percent.

Participants keep the exits. Paper on request, always free. Global opt out. Bad address gets cured or the person goes back on paper.

One departure from the pension rule worth flagging. No emailing the document itself, because DOL does not want PHI sitting in an employer-monitored inbox. Fair concern. But the 2002 safe harbor permits exactly that delivery path, and it stays fully intact. The rule names a problem it continues to allow.

Now the real issue. The safe harbor stops at the definition of group health plan under ERISA 733(a)(1). Life, AD&D, disability, and the rest of the welfare lineup are outside it. Small and mid-sized employers that do ERISA compliance at all do it with a wrap document. One plan, one SPD, one distribution list. Under this proposal, that employer runs the new safe harbor for the medical piece and the 2002 safe harbor for everything wrapped alongside it. Two standards, one envelope.

DOL asked for comment on extending this to all welfare plans. This is what my comments will be about. The employers most likely to comply are the ones this bifurcation punishes. Thankfully, EBSA anticipates this and also calls it out. They need practitioner feedback to really understand.

Comments close September 21st. What will you add?