Despite the stress and potentialfor problems, open enrollment provides an opportunity for a companyto set itself up for success for the following year.

One of the busiest times of year for an employee benefitsprofessional is open enrollment. It is a crucial and yetstressful time of year that typically results in numerous employee questions and complaints and is a timeof year with high potential for both employer and employeemistakes. Despite the stress and potential for problems, openenrollment provides an opportunity for a company to set itself upfor success for the following year.

The Employee Retirement Income Security Act (ERISA) does notrequire an annual opportunity for employees to change benefit planelections. However, because of compliance issues that can spring from notoffering a regular enrollment period, most companies choose tooffer an “open enrollment” period, usually taking place in mid- tolate fall for calendar-year health and welfare benefit plans.

Related: Open enrollment tips for benefits managers: Gettingready

Employee attention to employer communications during this periodis often high, and attention to detail in participant communications behooves an employerduring this period. Well-written and timely notices may be reliedupon to satisfy many compliance obligations. Inaccurate orincomplete open enrollment materials, however, can create employeeconfusion and result in legal liability under the complex networkof federal laws governing employer-sponsored benefit programs.

Below is a sampling of key issues to consider to help you avoidcompliance missteps during this year's open enrollment period.

1. Plan design changes

If you change your plan design (for example, adding a highdeductible health plan option and health savings account (HSA) oradding a healthcare flexible spending account (FSA) carryover,etc.), you should carefully review all language describing thechanges and consider how it will impact other coverage. Accuracyand clear communication are key to foreclose future benefit claimsand litigation. We also recommend checking with a trusted advisorand/or legal counsel if any of the plan design changes will requireplan amendments and/or updated summary plan descriptions.

2. Voluntary benefits

If you offer “voluntary” benefits that are intended to be exemptfrom ERISA, pay close attention to how these voluntary benefits aredescribed and endorsed and what administrative tasks you areperforming for these benefits. A misstep risks tripping thevoluntary plan safe harbor and subjecting these plans to one ormore of ERISA, COBRA, HIPAA, and other compliance mandates.

3. Health reform information reporting

As a check-in, ensure your enrollment vendor is able to providerecords of employees that waived and enrolled in group medicalbenefits. This could become critical when tracking offers ofcoverage when filings Forms 1094 and 1095 to satisfy healthreform's information reporting requirements each spring. Openenrollment is also a good time to check in with your informationreporting vendor to prepare for compliance with the filings for theupcoming spring. You should review your systems now to ensure theyare capturing the necessary information to be reported to theInternal Revenue Service (“IRS”) for all participant groups. It isalso a good idea to look back at any correspondence you receivedfrom the IRS regarding prior year reporting and confirm that anynoted issues are being addressed.

4. Privacy protections

Enrollment data is often protected health information (“PHI”)under HIPAA. Therefore, you should confirm as necessary that (1) abusiness associate agreement (“BAA”) is in place with all vendorsthat handle PHI, and (2) enrollment data that is PHI is not sharedoutside of the plan (yes, even with your colleagues) in a mannerthat could conflict with HIPAA mandates.

5. Review communications

Carefully review all language in open enrollment materials,which are rife with potential problems. Issues arise, for example,when an employee reads inconsistent descriptions and dates acrossdifferent open enrollment communications and when it is not clearwhich benefits require affirmative election each year. Openenrollment materials should also avoid language promising futurebenefits and include legal notices and disclaimers when necessary(such as the wellness plan notice of reasonable alternativestandard). Another important disclaimer you should considerincluding is a reservation of rights clause describing theemployer's right to amend and/or terminate the plan or any benefitofferings thereunder at any time.

6. Annual legal notices

Many notices are required on an annual basis, such as the HIPAANotice of Special Enrollment Rights and Children's Health InsuranceProgram (“CHIP”) Notice. It can be easy to miss a notice or two andyou should confirm each year that all required annual legal noticesare included and properly distributed.

7. Eligible groups

Enrollment materials typically need to go to a larger group thanjust your active employees. You should review your open enrollmentdistribution list to ensure that materials are appropriatelycommunicated to all eligible individuals—including, for example,COBRA qualified beneficiaries and alternate recipients under aQMCSO.

More ways to prepare for openenrollment: 

• Technology helping Americans feel more prepared foropen enrollment
• 2018 open enrollment trends: Staying ahead of thecurve
• 5 things small business owners should knowabout this year's open enrollment

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Megan Mardy is a partner andJacob M. Mattinson and Emily Rickardare associates with McDermott Will &Emery.  Mardy advises companies on a widevariety of health and welfare and retirement benefitsissues. Mattinson focuses his practice on employeebenefits and matters related to 401(k), 403(b), pension, executivecompensation, health care reform, and cafeteria and welfare plans.Rickard focuses her practice on executive compensation and employeebenefits, and has devoted a substantial portion of her practice toassisting employers in implementing and maintaining employee stockownership plans (ESOPs).