Several questions have arisen about the ability of individuals to appeal the determination of an employer that an employee is not entitled to the subsidy. Yesterday the DOL issued a FAQ for Employers available here. There is some general information but Question 12 specifically references the appeal process.
It appears from the DOL answer that it will be up to the employer initial to make the determination as to who is and is not eligible for the subsidy based on the return of the enrollment forms and the Request for Treatment as an Assistance Eligible Individual form that is provided with the new model notices. Employees make application for the subsidy and employers either approve or deny the request. Appeals of denial of the assistance will be made directly to the DOL (not to the employers) through a form and review process being developed by the DOL. The DOL has 15 days from receipt of an appeal to make a determination.
Because of the short time period for response, and because the DOL's decision will necessarily require contact with the employer, plan or insurer, the DOL is telling us that the turn-around time for providing information in response to an appeal will be very short, meaning employers should expect to have to give the DOL the basis for their rejection of the subsidy request almost immediately. Therefore, it is highly, highly recommended that employers not only work with their legal counsel to make sure forms are properly written and distributed, but also double check with counsel before issuing the rejection of subsidy request applications.
