19 Del. Admin. Code § 1401-12.0

Current through Reigster Vol. 28, No. 6, December 1, 2024

Section 1401-12.0 - Employee Claims, employer adjudication, and Divisional review

12.1 Employee claims process. If an employee in the public plan wishes to make a claim, they must use the claims application form provided on the Division's online portal. The claim form will include the following information:

12.1.1 Employee name;

12.1.2 Employee address;

12.1.3 Employee social security number or other identifying number;

12.1.4 Employee date of birth;

12.1.5 Employee email;

12.1.6 Employee telephone number;

12.1.7 Employer name;

12.1.8 Employee work location;

12.1.9 Employee job title and department;

12.1.10 Employee number (if any);

12.1.11 Type of leave requested by employee;

12.1.12 Whether the employee has more than 1 employer;

12.1.13 Whether employee eligible for any other type of benefits, including workers compensation and short-term disability; and

12.1.14 Any additional information as set forth in the claims application that the Division shall create.

12.2 The employee must complete and submit the form on the online system. The Division will not accept physical copies or scans of physical copies that have been completed by hand, manual typewriters, or similar devices.

12.3 The online portal will distribute the claims application form to the employee, employer, and Division.

12.4 Designated employee assistant in case of employee incapacitation or inability to manage claim. If an employee is unable to complete the necessary paperwork due to the serious illness that is the qualifying event under the medical leave provisions described in the Act, the employee's inability to access or operate the online system, or the employee otherwise needs assistance, then either a family member or another individual who does not directly benefit from the decisions they make or actions they take in this role may, through a signed, sworn assistant designation form created by the Division, be appointed to assist the employee.

12.4.1 While acting as the designated assistant, the individual is in fiduciary relationship with the employee.

12.4.2 If the designated assistant breaches their fiduciary duties, they will be subject to any applicable civil or criminal penalties. The Division, the employee, or the employee's estate shall have the authority to pursue any claims arising from the assistant's actions or decisions, through any appropriate legal means.

12.4.3 The employee may revoke this designation of an assistant at any time.

12.4.4 Only 1 assistant can be appointed at any 1 time, with the individual named in the chronologically applicable filing being recognized for that specific time period.

12.4.5 The online portal will distribute the assistant designation form and, if applicable, the revocation of assistant status form to both the employer and Division.

12.4.6 If requested, the Division shall provide reasonable assistance to all employees covered by the PFML insurance program and the employee's designated assistants to properly complete all online forms relating to this insurance program.

12.5 Employer's responsibilities, adjudication, protections.

12.5.1 Employers, insurance carriers, or third-party administrators shall adjudicate the employee's claims application form to the best of their ability, per the "reasonable person" standard."

12.5.2 The employer shall be expected to make a determination as to whether the claims should be paid, the amount of weekly benefit due to the employee, and the length of time the benefit should be paid out, according to the terms and provisions of the Act and based on the information provided by the employee and certified by the appropriate healthcare provider, in a manner and to the extent that a reasonable person would be expected to do so.

12.5.3 The employer shall not be required to make any substantive claims-related decision based on information not in the employer' possession. However, they must make a good faith effort to assist the employee in the gathering of all the required information from either the employee or the designated assistant to make an informed and reasonable decision on the eligibility and payment or ineligibility of the request.

12.5.4 Employers are required to provide reasonable assistance to their employees or the employee's designated assistants to properly complete all the online forms created by this Division or a private plan administrator for this insurance program, including claims forms and claims review forms. This requirement for employers to assist in the completion of these online forms is subject to the anti-retaliation provisions of the Act.

12.5.5 If the health care provider does not return a completed certification of serious health condition within 20 days, the system will notify the employer and employee that the certification is still outstanding. The employee has the responsibility of following up with the health care provider. If, after 30 days from the day the claim form was submitted, the health care provider has still not returned a completed certification via the online portal, the system will mark the claim as "Denied Due to Lack of Certification". This claim shall automatically be revived if the certification is received within 60 days after it has been marked "Denied Due to Lack of Certification" without requiring the submission of a new claims form.

12.5.6 For the PFML public plan, once all of the required information has been uploaded to the Division's online portal by the appropriate parties, the software system will provide an advisory notice to the employer regarding the approval or denial of a claim. The employer then has 5 business days to adjudicate the claim.

12.5.6.1 The length of the approved leave shall be based primarily on the recommendation of the appropriate healthcare provider, as supported by disability industry standards and best practices in this area.

12.5.6.2 After the claim determination is made, the employer will then have 3 business days to communicate their decision via the online portal system to the employee (or the employee's designated assistant) and the Division.

12.6 Division's responsibility to pay approved benefit. The Division shall be required to make the first payment of benefits to a covered individual within 30 days after the employer has notified the Division of the approved claim, with subsequent payments being required to be made every 2 weeks thereafter until the approved length of the employee's leave expires.

12.7 Employee's right to request a claims review by the Division. After an employer who is covered by the public plan or a self-insured plan issues its decision on a claim for paid family and medical leave benefits, the employee or the employee's designated assistant may request, within 60 days of issuance of employer's decision, that the Division review the claim.

12.7.1 This request for the Division to review the claim must be made via a claims review request form that shall be created by the Division and made available on the Division's online portal.

12.7.2 Neither the employer nor the Division shall be required to respond to either a handwritten (or manually typed) form submitted by any means other than the online portal or to a handwritten (or manually typed) form that has been scanned and then submitted through the Division's online portal system, as neither of those methods are acceptable and will not update the Division's electronic claims database/records system.

12.7.3 Both the Division and the employer are required to provide, without any prejudice or fear of retaliation, reasonable assistance so that the employee or the employee's designated assistant can complete, inter alia, the claims review request form.

12.7.4 After the claims review request form has been completed and properly transmitted to the Division, the Division shall undertake a review of the employer's claims adjudication decision-making process.

12.7.5 For first level appeals under private plans, employees have the right to request reconsideration of a denial or other decision by an insurance carrier or third-party administrator ("TPA") directly with that entity. Beginning January 1, 2026, if the insurance carrier or TPA upholds its decision, the employee may then pursue an appeal with the Division. From January 1, 2025 to December 31, 2025, however, all insurance carrier or TPA denials must be appealed directly to the Board as set forth in Section 13.0, without Division review.

12.8 Division claims review determination. If a claims review request form is filed by the employee, the Division shall review the claim and issue a determination, in writing, to the parties within 10 business days of receipt of the review request, either upholding or reversing the employer's initial determination regarding the claim.

19 Del. Admin. Code § 1401-12.0

28 DE Reg. 147 (8/1/2024) (Final)