7 Colo. Code Regs. § 1107-5.3

Current through Register Vol. 47, No. 24, December 25, 2024

Section 7 CCR 1107-5.3 - Private Plan Requirements

1. An employer may comply with the FAMLI Act by providing an approved private plan that provides all of the same rights, protections and benefits provided to employees by the FAMLI Act and its implementing regulations, including but not limited to:

A. Allowing family and medical leave insurance benefits to be taken for all purposes specified in C.R.S. § 8-13.3-504(2);

B. Providing family and medical leave insurance benefits to a covered individual for any of the purposes, including multiple purposes in the aggregate, as set forth in C.R.S. § 8-13.3-504(2), for the maximum number of weeks required in C.R.S. § 8-13.3-505(1) in a benefit year as defined in 7 CCR 1107-3 Section 3.2.4;

C. Allowing family and medical leave insurance benefits under C.R.S. § 8-13.3-504(2)(b) to be taken to care for any family member as defined under C.R.S. § 8-13.3-503(11) and 7 CCR 1107-3 Section 3.4.6;

D. Allowing family and medical leave insurance benefits under C.R.S. § 8-13.3-504(2)(c) to be taken by a covered individual with any serious health condition;

E. Allowing family and medical leave insurance benefits under C.R.S. § 8-13.3-504(2)(e) to be taken for any safe leave purposes;

F. Providing a wage replacement rate for all family and medical leave insurance benefits of at least the amount required by C.R.S. § 8-13.3-506(1)(a);

G. Providing a maximum weekly benefit for all family and medical leave insurance benefits of at least the amount specified in C.R.S. § 8-13.3-506(1)(b);

H. Allowing a covered individual to take intermittent leave as authorized by C.R.S. § 8-13.3-505(3) or a reduced leave schedule pursuant to 7 CCR 1107-3;

I. Imposing no additional conditions or restrictions on family and medical leave insurance benefits, or paid family and medical leave taken in connection therewith, beyond those explicitly authorized by the FAMLI Act or regulations issued pursuant to the FAMLI Act;

J. Allowing any employee covered under the private plan who is eligible for family and medical leave insurance benefits under the FAMLI Act to receive benefits and take paid family and medical leave under the private plan; and

K. Providing that the cost to employees covered by a private plan shall not be greater than the cost charged to employees under the state plan under C.R.S. § 8-13.3-507.

2. Subject to the limitations described at Section 5.5.3 of these rules, an approved private plan shall be in the form of either self-insurance or a policy obtained through an insurer approved by the state. An insurer shall not allow coverage for an employer under its policy to become effective earlier than thirty (30) days after the employer has received private plan approval from the FAMLI Division.

3. Private plans must offer benefits to all covered individuals employed by the employer. Nothing prohibits a private plan from covering multiple employers' workforces; however, if an employer intends to meet its obligations under the FAMLI Act and its implementing regulations with an approved private plan, it must apply for private plan approval, pay the administrative fee described in these rules, pay the maintenance fee described in these rules, and otherwise comply with these rules regardless of how many other employers use or intend to use the same private plan to meet their obligations under the FAMLI Act and its implementing regulations.

4. Private plans must not impede the ability of an employer, an employee, or a private plan administrator to comply with the provisions of the FAMLI Act or its implementing regulations.

5. The earnings requirement necessary to be a "covered individual" pursuant to C.R.S. § 8-13.3-503(3)(a)(I) is not "per-employer" and private plans may not deny or otherwise limit benefits to which the covered individual would otherwise be entitled. However, if the private plan administrator does not have verified wages from other employers, the private plan administrator may determine a claimant's wage replacement amount based on the private plan employer's wages, so long as the employee is able to appeal the benefit decision to provide accurate wage information for their other employment.

6. Employers who are approved to provide FAMLI benefits under a self-insured plan must establish and maintain a separate account for their localized Colorado employees:

(1) into which all localized employee contributions are deposited and kept; and

(2) from which all benefits for localized employees must be paid, and from which private plan administrative costs may be paid. Employers may not withdraw from the account except to pay benefits and private plan administrative costs. Upon any voluntary or involuntary termination of a self-insured plan, the employer must remit the remaining balance of the account to the Division.

7. All private plans must provide for the confidentiality of employee information related to FAMLI benefits, and such information must be kept separate from all other employment records.

8. By submitting an application for benefits to a private plan administrator, the claimant consents to the private plan administrator sharing with the employer, upon the employer's request, limited information necessary for the employer to coordinate FAMLI benefits with other benefits for which the claimant is eligible, in accordance with the information-sharing provisions of 7 CCR 1107-4, including the wage replacement amount and the reason for leave. The employer shall not request, and the private plan administrator shall not provide, information that is not absolutely necessary for such benefit coordination. An employer's request for information not absolutely necessary for such benefit coordination, or a private plan administrator's provision of information not absolutely necessary for such benefit coordination, may constitute discrimination, retaliation, and/or interference in violation of C.R.S. § 8-13.3-509. The employer must store and maintain the confidentiality of such information in accordance with all applicable federal, state, and local laws and regulations, and failure to do so may constitute discrimination, retaliation, and/or interference in violation of C.R.S. § 8-13.3-509.

9. All private plans must provide that an employee shall be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the employee's claim for benefits within seven (7) days of the request. If the Division determines that an employee was not granted access and copies in violation of this section, the Division may assess upon the private plan administrator a fine of up to $250.00 per violation.

10. With regard to forms that claimants and/or health care providers will be required to complete in relation to a claim for benefits, all private plans shall either utilize the forms provided by the Division, or utilize forms that are no more onerous than the forms provided by the Division. If a private plan administrator makes changes to an approved form, they may submit the revised form to the Division for review and approval. If the Division determines that an employee had to, as a condition to access benefits, use a form more onerous than the forms provided by the Division, the Division may assess upon the private plan administrator a fine of up to $500.00 per violation, except that the Division shall not assess a fine for a form that it has approved.

11. Private plans must determine whether an application for benefits is properly filed, and must do so in a manner consistent with 7 CCR 1107-3 Section 3.6.8.

12. In accordance with C.R.S. § 8-13.3-521(7), in addition to the initial administration fee described in these rules, starting in 2025, an employer with an approved private plan must pay the Division an annual maintenance fee to cover amounts expended by the division for costs arising out of the administration of private plans.

A. The Division will calculate a flat fee per employer with an approved private plan for all routine costs. The flat fee will be prorated for employers who did not have private plan approval from the Division for the entire period covered by the maintenance fee. Routine costs are costs that are incurred on all private plans, or costs that are incurred regardless of private plan administration, including, but not limited to, review of plan modifications necessary to comply with changes to the FAMLI Act, data reporting and analysis costs, data sharing across plans, review of continuing coverage requirements, and random audits. Technology development costs will be included in the flat fee and considered spent evenly over each of the five years after the division incurs them.

B. The Division will calculate an individualized fee for each employer with an approved private plan for all non-routine costs. Non-routine costs are costs the Division incurs as a result of the private plan administration, including, but not limited to, appeals of private plan determinations, appeals of withdrawals of private plan approval, appeals of denials of private plan applications, retaliation and interference investigations, appeals of retaliation or interference determinations for employers with an approved private plan, surety bond reviews, review of private plan modifications not necessary to comply with changes to the FAMLI Act, and targeted audits. The individualized fee will not include any costs incurred in reviewing an employer's application for private plan approval.

C. The maintenance fee shall cover all costs arising out of the employer's private plan for the prior fiscal year beginning July 1 and ending June 30.

D. The Division will deliver an invoice of the maintenance fee to each employer no later than November 30 each year.

E. Private plan maintenance fees shall be due no later than December 31 each year. The Division may extend this deadline for good cause.

F. Private plan maintenance fee calculations may be appealed pursuant to 7 CCR 1107-9.

G. Employers who are members of a professional employer organization ("PEO") certified pursuant to C.R.S. § 8-70-114 do not have to pay an annual maintenance fee if the PEO has an approved private plan that covers all the employer's Colorado employees. The certified PEO will be assessed a maintenance fee for private plan costs attributable to its member employers.

13. Private plans must make reasonable efforts to make forms and communications under these rules available in an individual's primary language.

14. The internal reconsideration and appeals procedures under a private plan need not be equivalent or better than those procedures under the state plan, so long as the private plan provides for appeals to the Division and any court of competent jurisdiction, in accordance with C.R.S. § 8-13.3-521(5). However, all determinations under a private plan are appealable directly to the Division pursuant to 7 CCR 1107-9, and a private plan may not require a claimant to go through any internal review, reconsideration, or appeal before appealing a private plan determination to the FAMLI Division.

15. Private plans will not be reviewed or approved for any local government, or for any individual electing coverage pursuant to C.R.S. § 8-13.3-514.

16. An insurer approved by the state shall send notification to the Division within fourteen (14) days after any lapse in or end of coverage under the policy. The notification shall include:

A. The effective date of the lapse in or end of coverage;

B. The cause of the lapse in or end of coverage;

C. Whether the employer may reinstate the policy;

D. If eligible for reinstatement, the time period during which the employer has to reinstate; and

E. If eligible for reinstatement, the requirements for reinstatement.

17. An insurer approved by the state shall send notification to the Division within three (3) business days after the employer is sent notification of reinstatement. The reinstatement notification shall include:

A. The effective date of the reinstatement;

B. Whether there was a lapse in coverage; and

C. If there was a lapse in coverage, the dates coverage lapsed.

7 CCR 1107-5.3

45 CR 23, December 10, 2022, effective 12/30/2022

46 CR 23, December 10, 2023, effective 1/1/2024

47 CR 23, December 10, 2024, effective 1/1/2025