State and Territory Updates

Recently, Gov. Ivey signed Senate Bill 31, the “Adoption Promotion Act,” into law. The act, which takes effect July 1, 2022, allows eligible employees to take up to 12 weeks of parental leave to care for and bond with a newborn or newly placed adopted child.

The act applies to covered employers and eligible employees under the FMLA. Accordingly, employers who employ 50 or more employees within 75 miles must comply. Employees are eligible after having been employed by the employer for at least 12 months and having worked 1250 hours in the 12 consecutive months prior to using the leave.

The leave must be taken within the first 12 months of the birth or placement of the child. Employees are expected to provide at least 30 days advance notice prior to taking the leave unless the leave is unforeseeable (in which case, notice should be provided as soon as practicable). Intermittent leave is permitted if agreed upon by the employer and employee.

Additionally, if the employer provides paid leave for birth and care of a child, the employer must provide equivalent paid leave for adoption for a period of two weeks or the duration of the employer’s paid leave, whichever is less. If both adoptive parents work for the same employer, the employer is only required to provide paid leave to one employee.

Employers must consider requests for additional family leave due to the adoption of an ill or disabled child on the same basis as they would for the birth of a biological child to an employee. However, employers are not required to provide leave beyond the employee’s FMLA entitlement.

Employers and their human resources staff should be aware of the new law and update their leave policies and procedures accordingly.

Adoption Promotion Act »

On March 30, 2022, Commissioner Ridling issued Bulletin Number 2022-03 to announce an extension of transitional relief for certain non-grandfathered individual and small group policies known as “grandmothered” policies. The bulletin follows the recent CMS extension of the federal nonenforcement policy concerning specific ACA compliance requirements for these plans.

On November 14, 2013, CMS announced a transitional policy with respect to the healthcare reform mandates for coverage in the individual and small group markets. This nonenforcement policy provided relief from certain market reforms, including prohibitions of coverage exclusions based on pre-existing conditions and requirements to cover essential health benefits and limit annual out-of-pocket spending.

Under the policy, state authorities could permit health insurance issuers to continue coverage that would otherwise have been cancelled for failure to comply with the ACA requirements. The commissioner has historically allowed insurers the option to continue such coverage. Bulletin 2022-03 represents the most recent extension of this policy and applies to renewals for plan or policy years beginning on or after October 1, 2022, and will remain in effect until CMS announces that all such coverage must come into compliance with the specified requirements.

Accordingly, small employers who are currently covered by such grandmothered policies issued in the state should be aware of the bulletin. These employers should work with their advisors and insurers regarding possible renewal of the coverage.

Bulletin No. 2022-03 »

On September 1, 2021, the Department of Insurance issued Bulletin No. 2021-09 to alert carriers to recent federal guidance regarding coverage requirements for HIV Pre-exposure Prophylaxis (PrEP) without cost-sharing. The bulletin was directed at carriers writing insurance in the state.

The US Preventive Services Task Force made recommendations regarding coverage of PrEP as preventive services to decrease the risk of HIV transmission for persons who are at high risk of HIV infection. The recommendation encompasses not only the drug itself, but also the ancillary tests and services to begin and maintain a PrEP prescription. These baseline and monitoring services include HIV testing, hepatitis B and C testing, creatinine testing and calculated estimated creatine clearance or glomerular filtration rate, pregnancy testing, sexually transmitted infection screening and counseling and adherence counseling.

Accordingly, the bulletin recommends that carriers update their websites to reflect the scope of the PrEP coverage provided as preventive services without cost-sharing. Carriers are also advised to provide enrollees with information clarifying the coverage and to provide a copy of the communication to the department.

The bulletin notes that federal regulators have given insurers until September 19, 2021 to provide this coverage and that the department will adhere to this implementation date.

Although the guidance is directed at insurers, employers that sponsor group health plans may also want to be aware of these preventive service coverage requirements.

Bulletin No. 2021-09 »

On February 3, 2021, Commissioner Ridling issued Bulletin Number 2021-01 to announce a one-year extension of transitional relief for certain non-grandfathered individual and small group policies known as “grandmothered” policies. The bulletin follows the recent CMS extension of the federal nonenforcement policy concerning specific ACA compliance requirements for these plans.

On November 14, 2013, CMS announced a transitional policy with respect to the healthcare reform mandates for coverage in the individual and small group markets. This nonenforcement policy provided relief from certain market reforms, including prohibitions of coverage exclusions based on pre-existing conditions and requirements to cover essential health benefits and limit annual out-of-pocket spending.

Under the policy, state authorities could permit health insurance issuers to continue coverage that would otherwise have been cancelled for failure to comply with the ACA requirements. The commissioner has historically allowed insurers the option to continue such coverage. Bulletin 2021-01 represents the most recent extension of this policy and applies to renewals for plan or policy years beginning on or before October 1, 2022, and coverage extending through December 31, 2022.

Accordingly, small employers who are currently covered by such grandmothered policies issued in the state should be aware of the bulletin. These employers should work with their advisors and insurers regarding possible renewal of the coverage.

Bulletin Number 2021-01 »

On September 21, 2020, the IRS announced that state residents who were victims of Hurricane Sally are eligible for certain tax relief. Under AL-2020-02, affected taxpayers will have until January 15, 2021, to file various individual and business tax returns and make tax payments.

The announcement followed the recent disaster declaration for individual assistance issued by the Federal Emergency Management Agency. Taxpayers who reside or have a business in Baldwin, Escambia, and Mobile counties, as well as any other counties added later to the disaster area, qualify for the relief.

Accordingly, certain deadlines falling on or after September 14, 2020, and before January 15, 2021, are postponed through January 15, 2021. This includes individual and business tax filers that had a valid extension to file their 2019 return due to run out on October 15, 2020. However, because tax payments related to these 2019 returns were due on July 15, 2020, those payments are not eligible for this relief.

The January 15, 2021, deadline applies to the third quarter estimated tax payment due on September 15. It also applies to the quarterly payroll and excise tax returns normally due on November 2. Additionally, the relief extends to the filing of Form 5500 series returns that were due on or after September 14, 2020, and before January 15, 2021.

Affected taxpayers should refer to Revenue Procedure 2018-58, which specifies the scope of the available relief, for further information. The postponement of time to file and pay does not apply to information returns in the W-2, 1094, 1095, 1097, 1098 or 1099 series; to Forms 1042-S, 3921, 3922 or 8027; or to employment and excise tax deposits. However, penalties on deposits due on or after September 14 and before September 29 will be abated as long as the deposits are made by September 29, 2020.

Impacted employers should be aware of the potential relief and may want to consult with their tax advisors for further information.

IRS Announcement »
Rev. Proc. 2018-58 »

On June 15, 2020, Insurance Commissioner Ridling issued Bulletin Number 2020-14 to announce a one-year extension of transitional relief for certain nongrandfathered individual and small group policies known as “grandmothered” policies. The bulletin follows the CMS extension of the federal nonenforcement policy with respect to specific ACA compliance requirements for these plans through December 31, 2021.

As background, on November 14, 2013, CMS issued a letter outlining a transitional policy with respect to the healthcare reform mandates for coverage in the individual and small group markets. This nonenforcement policy provided relief from specific market reforms, including requirements to cover essential health benefits and limit annual out-of-pocket spending and prohibitions of coverage exclusions based on pre-existing conditions.  

Under the policy, state authorities could choose to allow health insurance issuers to continue coverage that would otherwise have been cancelled for failure to comply with the ACA requirements. The commissioner had previously announced the state’s intent to allow insurers the option to continue such coverage. Bulletin 2020-14 represents the most recent extension of this policy.

Accordingly, small employers who are currently covered by such grandmothered policies issued in Alabama should be aware of the bulletin. These employers should work with their advisors and insurers regarding possible renewal of the coverage.

Bulletin Number 2020-14 »

On April 17, 2020, the Commissioner Ridling issued Bulletin No. 2020-07 regarding the need for flexibility in health insurance coverage in light of the coronavirus pandemic. The bulletin is directed at all insurers writing health insurance in the state.

The bulletin follows the declaration of a public emergency in the state and the issuance of local “shelter-in-place” orders. The duration of the emergency declaration is unknown at this time.

As a result, the commissioner urges health insurers to consider exercising flexibility with respect to maintaining employee health plan coverage. Specifically, insurers are encouraged to permit employers to continue covering employees under group policies even if the employees would otherwise become ineligible due to a reduction in hours, an “actively-at work” provision, or other eligibility requirements. Insurers are also encouraged not to increase premiums. The commissioner will not take enforcement action with respect to filed forms and rates against insurers that adjust policies and procedures to conform to these suggestions. The bulletin further reminds insurers of their COBRA obligations.

Employers with group policies issued in the state should be aware of these developments, particularly if seeking to continue coverage for employees with reduced hours due to the pandemic. However, it is important to keep in mind that most group health plans are governed by ERISA, which generally requires an amendment to update eligibility requirements. Additionally, notice must be provided to affected individuals. Accordingly, interested employers may want to discuss potential plan eligibility requirement changes with their insurer and document provider.

Bulletin No. 2020-07 »

On March 30, 2020, the Department of Insurance issued Bulletin No. 2020-05 in relation to policy cancellations or nonrenewals due to the coronavirus (COVID-19) pandemic. The bulletin applies to all commercial and personal lines of insurance, including property, casualty, disability, accident and health, and life insurance policies.

The bulletin follows Gov. Ivey’s declaration of a public health emergency in the state and “shelter in place” orders issued by local government entities. These mitigation efforts to limit the spread of the COVID-19 virus have resulted in worker displacement and business disruption.

As a result, affected individuals and entities may be unable to timely pay insurance premium payments. Accordingly, the Commissioner of Insurance recommends insurers consider certain actions for policies in force as of March 13, 2020. These measures include relaxing premium payment due dates, extending grace periods, waiving late fees and penalties, and allowing premium payment plans to avoid a lapse in coverage. Insurers are asked to consider policy cancellation only after expending all efforts to work with policyholders to maintain coverage.

Insurers and producers are also requested to provide alternative payment options, such as online or electronic transfers, to avoid the need for in-person transactions.

The bulletin is primarily directed at insurers. However, employers should also be aware of these developments and the possibility of premium payment flexibility, as necessary.

Bulletin No. 2020-05 »

On March 13, 2020, the Department of Insurance issued Bulletin No. 2020-02 regarding coronavirus (COVID-19) coverage and preparedness. The directive is issued to all insurance carriers authorized to transact health insurance in the state.

The Bulletin is released as part of the state’s proactive planning effort to address COVID-19. The outlined steps are designed to assist individuals and regulated entities in combating the urgent health challenge.

Accordingly, the Bulletin requests that health insurance carriers waive any cost sharing for COVID-19 lab tests so that cost does not hinder Alabamians from receiving testing. Carriers are also asked to waive cost sharing for in-network provider office visits and urgent care center visits, as well as for emergency room visits when testing for the coronavirus. If an insurance carrier doesn’t have an in-network provider with appropriate training and experience to meet the needs of someone needing treatment, the department requests that carriers provide an out-of-network option at the cost available for those in network.

The department asks that insurance carriers review their telehealth programs to ensure they’re equipped to meet demand amid any increased need for services. Additionally, the department requests that insurers immediately cover the cost of a COVID-19 vaccine at no cost sharing for covered members once the vaccine is developed and available to the public.

The memo is directed at insurers, but employer should also be aware of these developments.

Bulletin No. 2020-02  »

On May 13, 2019, Insurance Commissioner Ridling released Bulletin 2019-04 to extend the ability of health insurance carriers in the individual and small group market to continue transitional health insurance plans that renew for a policy year starting on or before October 1, 2020, as long as the coverage comes into ACA compliance by January 1, 2021.

As background, on March 25, 2019, CMS provided guidance for a transition policy extension that allows insurers the option to renew non-grandfathered non-ACA-compliant plans, as long as the state allows for such an extension. Such transition policies are not required to be in compliance with certain ACA mandates including community rating, coverage of essential health benefits, prohibition on pre-existing condition exclusions and the annual out-of-pocket maximum limit. This bulletin applies this most recent federal extension to Alabama and allows the issuer to renew these non-ACA compliant plans either as an early renewal or short policy year to implement the extension.

Small employers that are interested in renewing their non-ACA-compliant plan should work with their advisors and insurers.

Bulletin 2019-04 »

The IRS recently published guidance containing certain relief for individuals and businesses affected by severe storms, tornadoes and straight-line winds that took place on March 3, 2019, in Alabama. Specifically, the IRS offered extensions in relation to certain tax filing deadlines. The extensions apply automatically to any individual or business in an area designated by the Federal Emergency Management Agency as qualifying for individual assistance.

Specifically, individuals and businesses that reside in Lee County may qualify for tax relief. As a result of this relief, individuals or businesses that had forms due on or after March 3, 2019, and before July 31, 2019, have additional time to file the form through July 31, 2019. As it relates to benefits, the relief would generally apply to quarterly payroll, employment and excise tax filings due, as well as to any employers that may have previously applied for a Form 5500 filing extension. However, the extension of time to file and pay does not apply to the W-2, 1094, 1095, 1097, 1098 or 1099 information return series.

Impacted employers should discuss their filing obligations with their CPA or tax professional, with this relief in mind.

IRS News Release »

On March 28, 2018, Gov. Ivey signed SB 318, the Alabama Data Breach Notification Act, into law. This law requires covered entities to implement reasonable, appropriate security measures to protect personal information on state residents from a security breach. Further, it requires employers to notify employees and applicants about any breach of personal information and if the breach is likely to cause substantial harm.

A covered entity is defined as "a person, sole proprietorship, partnership, government entity, corporation, nonprofit, trust, estate, cooperative association, or other business entity that acquires or uses sensitive personally identifying information." Thus, any public or private employer that acquires or uses certain personal information on Alabama residents, including on employees and applicants, is subject to the security measure requirements and breach notification provisions.

Personal information is defined as a resident's first name or first initial and last name in combination with one or more of the following with respect to the same resident:

• A non-truncated Social Security number or tax ID number
• A non-truncated driver's license number, state-issued ID card number, passport number, military ID number or other unique ID number issued on a government document used to verify the identity of a specific individual
• A financial account number, including a bank account number, credit card number or debit card number, in combination with any security code, access code, password, expiration date or PIN, that's necessary to access the financial account or to conduct a transaction that will credit or debit the financial account
• Any information regarding an individual's medical history, mental or physical condition, or medical treatment diagnosis by a health care professional
• An individual's health insurance policy number or subscriber identification number and any unique identifier used by a health insurer to identify the individual
• A user name or email address, in combination with a password or security question and answer that would permit access to an online account affiliated with the covered entity that's reasonably likely to contain or is used to obtain sensitive personally identifying information

Covered entities that experience a breach must notify affected residents within a reasonable time to conduct an appropriate investigation, but no later than 45 days from the determination that a breach has occurred and is reasonably likely to cause substantial harm (with certain exceptions). Importantly, if a covered entity's third-party agent experiences a breach in the agent's system, the agent must notify the covered entity as soon as possible, but no later than 10 days following the determination of the breach or reason to believe the breach occurred. If more than 1,000 Alabama residents are affected by a breach, covered entities must notify the state attorney general and consumer reporting agencies with specific information. Therefore, covered entities need to review third-party service agreements to ensure they're meeting these requirements and to ensure breach procedures are in place should an incident occur.

In addition, the law imposes reasonable security requirements for covered entities and third-party vendors, including an assessment based on the security measures as a whole.

Therefore, employers with employees in Alabama should familiarize themselves with the specific data breach notification requirements, and they should update security measures to adequately protect the data they hold and respond appropriately to any potential data incident. This law is effective May 1, 2018.

SB 318 »

On May 19, 2017, Gov. Ivey signed HB 284 into law, amending Alabama Code sections 10A-20-6.16, 27-21A-23 and 27-54A-2 related to the provision of coverage for autism spectrum disorder. The amendment requires fully insured plans issued in Alabama to employers with at least 51 employees to provide coverage for diagnosis, screening and treatment of autism spectrum disorders for plan participants who are age 18 or younger (under the pre-amended law, the age was 9 or younger).

The amendment is effective for health benefit plans delivered, executed, issued, amended, adjusted or renewed in Alabama on or after Oct. 1, 2017.

HB 284 »

On Oct. 1, 2015, Insurance Commissioner Ridling issued Bulletin No. 2015-06. The bulletin encourages insurers and vision care providers to review their plan form filings and provider contracts to ensure compliance with the terms of recently adopted Ala. Act No. 2015-481 (SB 270, 2015 Regular Session).

As background, on June 11, 2015, Gov. Bentley signed SB 270 into law. The law prohibits insurers of vision care services from limiting a vision care provider's ability to set fees for services and materials, to participate in specific vision care plans and to choose sources of suppliers in certain circumstances. The law also prohibits vision care providers from charging more to an insurer than the customary rates of those vision care providers and requires reasonable reimbursements for vision care services and materials to vision care providers. The Alabama Department of Insurance may adopt rules to implement this law.

The law became effective June 11, 2015.

Bulletin No. 2015-06 »

On June 11, 2015, Gov. Bentley signed SB 270 into law. The law prohibits insurers of vision care services from limiting a vision care provider's ability to set fees for services and materials, to participate in specific vision care plans and to choose sources of suppliers in certain circumstances. The law also prohibits vision care providers from charging more to an insurer than the customary rates of those vision care providers and requires reasonable reimbursements for vision care services and materials to vision care providers. The Department of Insurance may adopt rules to implement this law. The law is effective immediately.

Senate Bill 270 – Act No. 2015-481 »

On June 11, 2015, Gov. Bentley signed SB 296 into law. The law places restrictions on the terms of certain health insurance policies, health maintenance organization plans and other health benefit plans with respect to dental services. The new law prohibits a policy or plan from setting fees for services that are not covered by the plan or policy and provides certain exceptions. Specifically, an insurance policy, plan or contract providing for third-party payment or prepayment of health or medical expenses issued after Jan. 1, 2016 may not require a dental care provider to provide service to a covered person at a fee set by the policy or plan unless the services are covered by the policy or plan. The law becomes effective Sept. 1, 2015.

Senate Bill 296 – Act No. 2015-483 »

On Jan. 26, 2015, a federal district court ruled that Alabama's prohibitions against permitting same-sex marriage are unconstitutional. Previously, the court ruled that Alabama's prohibitions against recognizing out-of-state same-sex marriages are unconstitutional. The court blocked the state from enforcing these prohibitions, but stayed both rulings until Feb. 9, 2015 (Strawser v. Strange, S.D. Ala., No. 1:14-cv-00424, 1/26/15; Searcy v. Strange, S.D. Ala., No. 1:14-cv-00208, 1/23/15). On Feb. 9, 2015, the U.S. Supreme Court denied the application for a continued stay. Therefore, it appears that same-sex marriage is legal in Alabama.

The rapid changes in state marriage laws have important effects for individuals in Alabama and for employers administering state tax rules. They are less significant for purposes of administering federal tax and benefit rules due to the Supreme Court's Windsor decision and subsequent agency guidance recognizing all same-sex spouses regardless of state of residence. Employers in Alabama should work closely with their attorneys and tax advisors to ensure plan design compliance in light of the ongoing developments in this area.

This will most likely mean that group health insurance policies issued in Alabama will need to amend their plan documents to offer coverage to same-sex spouses. We are expecting further guidance from the state and will report such in future editions of Compliance Corner.

Strawser v. Strange »
Searcy v. Strange »
Feb. 9, 2015, U.S. Supreme Court Order »