Do you want to be selective and treat employees differently for purposes of group health plan benefits?  For example, some employers may consider implementing the following plan designs:

• A health plan “carve-out” that insures only select groups of employees (for example, a management carve-out);
• Different levels of benefits for groups of employees; or
• Employer contribution rates vary based on employee group.

In general, employers may treat employees differently, as long as they are not violating federal rules that prohibit discrimination in favor of highly compensated employees. These rules currently apply to self-insured health plans and arrangements that allow employees to pay their premiums on a pre-tax basis. The nondiscrimination requirements for fully insured health plans have been delayed indefinitely.

Employers should also confirm that any health plan rules do not violate other federal laws that prohibit discrimination. In addition, employers with insured plans should confirm that carve-out designs comply with any minimum participation rules imposed by the carrier.

Health Plan Design – General Rules

Nondiscrimination Tests

In general, a health plan will not have problems passing any applicable nondiscrimination test when the employer treats all of its employees the same for purposes of health plan coverage (for example, all employees are eligible for the health plan, and the plan’s eligibility rules and benefits are the same for all employees). However, treating employees differently may make it more difficult for a health plan to pass the applicable nondiscrimination tests. Examples of plan designs that may cause problems with nondiscrimination testing include:

• Only certain groups of employees are eligible to participate in the health plan (for example, only salaried or management employees);
• The health plan has different employment requirements for plan eligibility (for example, waiting periods and entry dates) for different employee groups;
• Plan benefits or contribution rates …