Headlines about "Communication and disclosure to participants"

Gathered from the web by the editors at BenefitsLink.com.
Target Date Retirement Funds: Lack of Clarity Among Structures and Fees Raises Concerns (PDF)
21 pages, dated October 2009; summary of the committee's research. (U.S. Senate Special Committee on Aging:)

SEC to Firms: Cut the Mind-Numbing Disclosures
Excerpt: "The SEC expects to soon start reviewing disclosure requirements for quarterly and annual filings. The agency wants to figure out what information should be omitted and what needs to be added. . . . " (Business Insurance)

[Guidance Overview] 2009 Year-End Health and Welfare Issues
Excerpt: "2009 is quickly coming to a close and health and welfare plan sponsors should address several recent legal developments and ongoing compliance requirements before year-end. In particular, calendar year plans should be amended (and SPDs updated) to reflect the new requirements that will be effective January 1, 2010, including Michelle's Law, expanded mental health parity requirements and GINA. Plan Sponsors should also ensure that plan changes needed for CHIPRA and the COBRA subsidy are implemented and documented." (DrinkerBiddle)

[Guidance Overview] Justices Tackle Case on Investment Fees
Excerpt: "Several Supreme Court justices on Monday seemed reluctant to make the courts arbiters of whether mutual fund investment advisers are charging excessive fees for their work on what has become an essential investment tool for Americans." (Washington Post; free registration required)

5 Tips in Using Retirement Planning Tools
Excerpt: "Retirement planning software is available for free on several major investment and retirement websites. But according to a recent analysis sponsored by the Pension Research Council, these programs do an inconsistent and often poor job." (U.S. News & World Report)

[Guidance Overview] Be Careful With Severance Plans; ERISA Reporting and Disclosure Rules Can Apply
Excerpt: "While most employers are well aware of ERISA's application to retirement plans and group health plans, many are surprised to learn that some severance arrangements are considered 'welfare pans' under ERISA and, are therefore, subject to ERISA's reporting and disclosure requirements, as well as the rules for processing and determining claims. Because not every severance arrangement is covered by ERISA, many employers overlook its potential application when they are implementing or designing a severance plan." (Fisher & Phillips)

[Guidance Overview] Chart of Year-End Required Participant Notices for Qualified Retirement Plans; Dec. 1 Deadline in Some Cases (PDF)
4 pages. Excerpt: "This advisory focuses on the escalating number of year-end notices that defined contribution plans must issue to participants. These notices must be distributed within a reasonable period of time prior to the start of the plan year. The accompanying charts describe these deadlines." (Alston+Bird)

[Guidance Overview] Medicare Part D Notices to Eligible Individuals Due Nov. 15 (PDF)
14 pages. Includes links to Model Individual Creditable Coverage Disclosure Notice and Model Individual Non-Creditable Coverage Disclosure Notice to be used in 2009. (Warner Norcross & Judd)

[Guidance Overview] Senate Hearing Considers 401(k) Target-Date Fund Concerns, More Regulation
Excerpt: "Concerns about 401(k) target-date funds aired in a Senate Special Committee on Aging hearing and report raise the prospect of greater regulation. Hearing witnesses praised the funds as an important savings option but reiterated some issues noted in the report, such as wide differences in asset allocations among funds with the same target date, provider fees and potential conflicts of interest. The Department of Labor is working with the SEC to assess the need for more guidance and may revisit rules for qualified default investment alternatives to ensure 'meaningful disclosure.'" (Mercer)

Ways and Means Committee Holds Hearing on DB Plan Funding and Investment Advice
Excerpt: "On Oct. 1, 2009, two panels testified before the House Committee on Ways and Means on retirement-related matters. The first focused on, and lobbied for, defined benefit (DB) pension funding relief. The six panelists, including Watson Wyatts director of Retirement Research, Mark Warshawsky, Ph.D., provided a wide range of experience and expertise. While it was universally accepted that pension relief is necessary, panelists disagreed about its form and who should receive it. Some advocated temporary relief from certain provisions of the Pension Protection Act of 2006 (PPA), while others argued for permanent changes to the law. The second panel focused on investment advice provided to defined contribution (DC) participants, specifically who can give investment advice to employees and how it should be provided." (Watson Wyatt Worldwide)

[Guidance Overview] Notice of Funding-Based Restriction on Lump-Sums Not Required for Participants in Pay Status
Excerpt: "CCH Note: The Treasury Department was authorized by the Worker, Retiree, and Employer Recovery Act of 2008 (P.L. 110-458) to prescribe rules (in consultation with the Labor Department) governing the ERISA-required notice of funding based limitations on distributions. The instant guidance has been issued pursuant to this authority. In addition, the IRS has further indicated that it will set forth (and presumably expound upon) the relief in upcoming guidance." (Wolters Kluwer)

[Guidance Overview] EEOC Updates Notice to Employees
Excerpt: "The Equal Employment Opportunity Commission (EEOC) has published a notice revising its 'Equal Employment Opportunity is the Law' poster to reflect changes required by the employment provisions (Title II) of the Genetic Information Nondiscrimination Act (GINA), which become effective on November 21, 2009. . . . The new poster can be found at http://www.eeoc.gov/posterform.html." (PLANSPONSOR.com; free registration required)

[Guidance Overview] Effects of the 401(k) Fair Disclosure and Pension Security Act (PDF)
3 pages. Excerpt: "This article discusses how employers providing 401(k) plans to their employees will be affected by the 401(k) Fair Disclosure and Pension Security Act of 2009 in the realm of fee disclosure under legislation currently pending in the U.S. House of Representatives. There are other provisions of the proposed legislation, including the provision of investment advice, which are not discussed here." (New York Law Journal via Patterson Belknap Webb & Tyler LLP)

[Opinion] HHS Breach Notification Rules Again Under Fire
Excerpt: "The Center for Democracy and Technology is the latest to find fault with the Department of Health and Human Services' data breach rules for personal health records. Under the current interim rules health care organizations that use encryption or destruction, no breach notification is necessary, but for those who don't, the health organization makes the call on whether the breach is harmful enough to trigger a breach notification. The Department of Health and Human Services should replace its controversial harm standard for triggering a personal health record data breach notification with a risk assessment approach that requires organizations to determine whether the data was actually viewed or acquired by an unauthorized person, according to the Center for Democracy and Technology." (eWEEK.com)

Creating the Impression of Lifetime Retiree Health Benefits Is Breach of ERISA's Fiduciary Duties
Excerpt: "An employer breached ERISA's fiduciary duties by giving employees the impression that retiree health benefits would continue for life when, in fact, the company had the power to eliminate them at any time, ruled the Third Circuit Court of Appeals (In re: Unisys Corp. Retiree Med. Benefits ERISA Litig.). The court said the message to employees during retirement counseling was 'at best a half truth' without mention of the company's right to amend the plan. The latest decision in this protracted litigation reminds employers not to overpromise in retiree health or any benefit communications." (Mercer LLC)

[Guidance Overview] Remember to Distribute Annual Medicare Part D Notices by November 15, 2009
Excerpt: "Just a reminder that it's time once again to make sure that you have distributed the Notice of Creditable Coverage required under Medicare Part D, which informs participants whether the prescription drug coverage offered under your health plan constitutes creditable or noncreditable coverage. Once again, the Centers for Medicare and Medicaid Services (CMS) has issued updated forms that you may use to provide this notice. Employers who sponsor a health plan offering prescription drug benefits must provide an annual notice to all Medicare-eligible participants that explains whether the prescription drug benefits offered under the plan are at least as good as the benefits offered under the Medicare Part D plan. The only employers exempt from this notice requirement are those that establish their own Part D plan or who contract with a Part D plan." (Warner Norcross & Judd LLP)

Health Care Organizations Hire Advisers / Change Plan Designs, According to Survey
Excerpt: "The new 403(b) regulations and the recent market volatility, combined with heightened fiduciary concerns, led more health care organization retirement plan sponsors to retain a retirement plan adviser, according to a survey conducted by Diversified Investment Advisors and the American Hospital Association (AHA). A press release said three-quarters of survey respondents reported they now have a plan adviser. In addition, 21% of plan sponsors consolidated the number of vendors used in their 403(b) plans and 20% converted to a single vendor arrangement." (PLANSPONSOR.com; free registration required)

[Guidance Overview] Plan Administrator Cannot Consider Motivation for Participants' Divorces When Determining Status of QDRO
Excerpt: "EBIA Comment: Plan administrators generally are not required to analyze whether a divorce order is valid under state domestic relations law. However, according to a prior DOL advisory opinion (also addressing allegedly sham divorces by pilots), if there is credible evidence that the order has been procured through fraud, plan administrators should take appropriate steps to resolve the validity of the order. Those steps will depend on the facts and circumstances, and could include relaying the evidence of fraud to the court or agency that issued the order. But if requested guidance from the court or agency is not received within a reasonable time, the plan administrator must proceed with determining the validity of the order (in other words, the plan administrator may not independently determine that the order is not valid under state law). Because these issues can be complex and fact-specific, plan administrators faced with potentially fraudulent QDROs may wish to seek the advice of experienced legal counsel." (Employee Benefits Institute of America)

[Opinion] Divorce and Pensions: Continental Style
Excerpt: "This is one of the great ERISA stories of all time - its like something out of a Boston Legal episode. I am speaking, of course, of the case, detailed here, of the Continental pilots who, concerned that the retirement plan may go belly up long before they retire, divorced their wives, executed QDROs transferring the retirement benefit to their now ex-spouses, after which the ex-wives took out lump sum payments, as the plan allowed. . . . [L]urking in the background, behind the entertaining fact pattern (entertaining, at least, to ERISA lawyers): the fact that we have a retirement system that is so tenuous that employees feel it is necessary to go to lengths such as this to protect themselves. That is the more significant issue that needs addressing, much more so than whether plan terms or QDRO requirements should be able to be manipulated in such a manner." (Stephen Rosenberg of The McCormack Firm, LLC)

Participant Education: Guidance for Defined Contribution Plans, 2009 (PDF)
2 pages. Excerpt: "The GFOA recommends that public plan sponsors make sure high-quality investment education is provided to defined contribution plan participants who are allowed to direct their investments. To accomplish this goal: 1. The plan should provide a consistent, ongoing educational program that uses a number of communication channels to address participants' different career stages and learning styles. Channelscould include one-on-one meetings, seminars, phone calls, the internet . . . ." (Government Finance Officers Association of the United States and Canada)

[Opinion] American Benefits Council Comments on Interim Final Rule on Breach Notification for Unsecured Protected Health Information (PDF)
4 pages. Excerpt: "The Council strongly supports the 'harm threshold' HHS adopted in its Interim Final Rule, requiring a covered entity to consider a number of factors to determine whether a particular disclosure poses a 'significant risk of financial, reputational, or other harm to the individual.' 45 CFR 164.402 (definition of 'breach'). If a disclosure meets the 'harm threshold,' the covered entity is required to provide notice to the affected individuals, the media (where applicable) and HHS." (American Benefits Council)

[Guidance Overview] Employer That Did Not Comply with Health Plan's COBRA Notice Requirements Is Not Entitled to Stop-Loss Reimbursement
Excerpt: "EBIA Comment: Because COBRA does not apply directly to insurers and stop-loss carriers, these entities are generally not obligated to provide COBRA coverage (or stop-loss coverage for COBRA claims) unless they enter into a contract requiring them to provide that coverage. The policies issued by group health insurers and by stop-loss insurers will generally include provisions requiring them to cover (or provide stop-loss coverage for) qualified beneficiaries who elect COBRA. But such policies often include provisions that allow the insurer to refuse payment unless certain conditions, including notices being given pursuant to the terms of the plan, are met. Employers that fail to follow the terms of their plan may, therefore, end up with no insurance coverage for an individual's COBRA claims." (Employee Benefits Institute of America)

Flexible Benefit Options Proving Cost-Efficient, According to Mercer
Excerpt: "The concept of employee choice in the type of benefits received from employers is taking hold worldwide, particularly as it offers a chance for employers to cut costs without cutting benefits, according to benefits consulting firm Mercer L.L.C. The company conducted a survey of more than 1,700 employers in 47 countries outside of the United States in May and June to find out what kinds of benefits companies offer and how they plan to change them. Attitudes and strategies toward employee benefits varies widely across the globe and depends largely upon local health systems and taxation systems. But the survey found that interest in flexible benefits packages that provide employees with wider choice about the mix of benefits received is becoming more popular in many countries." (Business Insurance)

[Guidance Overview] Deere & Co. Wins Suit over Retiree Health Benefits Reduction
Excerpt: "The U.S. District Court for the Southern District of Iowa has ruled that Deere & Co. did not violate the Employee Retirement Income Security Act (ERISA) when it changed its health benefit offering to retirees. Judge Charles R. Wolle said in his opinion that Deere was unambiguous when it reserved its right to amend the retirees' health benefits. Wolle rejected the retirees' argument that their benefits were vested and could not be altered by Deere because summary plan descriptions said their health benefits 'will continue' during retirement. 'Instead, Deere repeatedly and plainly stated in plan documents, including SPDs, that it retained the right to amend, modify or terminate the benefit plans,' the opinion said." (PLANSPONSOR.com; free registration required)

Defined Benefit Pension Sponsors Implementing Lump Sum Restrictions Need Not Notify Retirees
Excerpt: "Pension plan sponsors implementing PPA's lump sum restrictions do not need to notify individuals in pay status who no longer can elect a lump sum regardless of the PPA restriction, according to an IRS newsletter. The guidance helps sponsors facing an October deadline under ERISA Section 101(j) to notify participants and beneficiaries of restrictions that took effect on Oct. 1 or the earlier AFTAP certification date. But the newsletter's scope is narrow, so plan sponsors should review with counsel whether notices must be provided more broadly given their plans' terms." (Mercer LLC)

[Guidance Overview] Ninth Circuit on Disclosure of Contractual Time Limitations for Commencing Benefits Lawsuits (PDF)
Excerpt: "The Ninth Circuit Court of Appeals recently held that a one-year deadline to file a benefits claims lawsuit contained in a Summary Plan Description ('SPD') could be enforced against a participant despite the participant's argument that the one year deadline was: not placed in the proper section of the SPD and in a sufficiently conspicuous manner; and never conveyed by the plan's administrator in its claim denial letters." (Trucker Huss)

[Guidance Overview] IRS Guidance on Contribution of Unused Paid Time Off, Automatic Enrollment and Tax Notices (PDF)
Pages 1-3 of 6 pages. Excerpt: "During his weekly address over this past Labor Day weekend, President Obama announced several new initiatives with the goal of providing American workers additional avenues to save for retirement. The details of those initiatives were subsequently published in several Internal Revenue Service ('IRS') rulings and notices [and are summarized in the target document]." (Trucker Huss)

ERISA Advisory Council to Meet November 3-4
Excerpt: "The Advisory Council on Employee Welfare and Pension Benefit Plans (the ERISA Advisory Council) has announced an open meeting on November 3?4, 2009. The purpose of the open meeting is for the Advisory Council members to finalize their recommendations to be presented by the Advisory Council to the Secretary. At the November 4 afternoon session, the Council members will receive an update from the Assistant Secretary of Labor for the Employee Benefits Security Administration (EBSA) and present their recommendations. The Council recommendations will be on the following issues: (1) Promoting Retirement Literacy and Security by Streamlining Disclosures to Participants and Beneficiaries, (2) Stable Value Funds and Retirement Security in the Current Economic Conditions, and (3) Approaches for Retirement Security in the United States. Descriptions of these topics are available on the Advisory Council page of the EBSA Web site. Organizations or members of the public wishing to submit a written statement may do so by mail or e-mail on or before October 27, 2009. Individuals or representatives of organizations wishing to address the Council may request to do so. Oral presentations will be limited to ten minutes, but an extended statement may be submitted for the record." (International Foundation of Employee Benefit Plans)

[Guidance Overview] Important 2009 Deadlines for Retirement Plans (PDF)
2 pages. Excerpt: "This chart describes certain deadlines and planning items for the months of November and December that apply to tax-qualified plans. The deadlines are noted by the type of tax-qualified plan. The term DC Plan refers to a defined contribution plan including a 401(k) Plan and the term DB Plan refers to a defined benefit plan. Items that only apply to a 401(k) Plan are shown separately." (Drinker Biddle Reath LLP)

[Guidance Overview] Retirement and Savings Initiatives' Review as of October 2009 (PDF)
3 pages. Excerpt: "In a recent flurry of activity, the Internal Revenue Service has issued a series of notices and revenue rulings designed to promote retirement savings and address technical issues related to certain plan distributions. These initiatives are intended to: (i) encourage employers to add automatic enrollment features to their 401(k) plans; (ii) enable employees to convert unused vacation into additional retirement savings; and (iii) assist both employers and employees to better understand the available options for distributions from tax-favored retirement savings. A brief summary of the various pronouncements is set forth . . . ." (Dechert LLP)

[Guidance Overview] Summary of and Suggested Action Steps to Address the GINA Interim Final Regulations
10 pages. Excerpt: "Employers whose plans include wellness, health risk assessments and/or disease management will be most affected by the new rules. Detailed action steps will depend on the specifics of the employer's health care program, but some general action steps will apply to many group health plans: . . ." (Gallagher Benefit Services)

[Guidance Overview] New HIPAA Breach Notification Rules
Excerpt: "Rather than waiting for a breach to occur and then reacting in a panic, best practice is to proactively act now to establish notice procedures, maintain breach logs, revise business associate agreements, train employees and update privacy procedures." (Briggs and Morgan P.A.)

[Guidance Overview] Sponsors of Defined Contribution Plans Must Determine Minimum Distribution Policies by Nov. 30, 2009
Excerpt: "The key decisions facing employers are: Whether to give plan participants the option to waive required minimum distributions from a defined contribution plan for 2009 Whether the defined contribution retirement plan will accept rollovers of amounts that were previously distributed, under the required minimum distribution rules, but for which distribution could have been waived Whether to inform participants who are first subject to the minimum required distribution rules in 2009 of their distribution options and rollover rights with respect to such distributions[.]" (Davis Wright Tremaine LLP)

[Guidance Overview] Regulation Deadline Approaches for Section 403(b) Plan Sponsors
Excerpt: "Section 403(b) tax-sheltered annuity plans became subject to an updated and revised set of regulations effective Jan. 1, 2009. One of the requirements of the new regulations is that the plan sponsor must maintain a written plan document that satisfies the regulations' various rules and conditions[.]" (McGuireWoods LLP)

[Guidance Overview] HHS GINA Proposed Regulations: HIPAA Covered Entities Impacted
Excerpt: "Based on the proposed regulations, other documents should also be updated to reflect the new GINA provisions, including the health plan's policies and procedures. Depending on the services that are provided by a business associate and the language of existing business associate agreements, applicable business associate agreements may also need to be updated. Last, health plan sponsors should also consider whether adding protective language in their health plan documents is also appropriate." (Kilpatrick Stockton LLP)

[Guidance Overview] Missed COBRA Qualifying Events Cause Forfeiture of Stop Loss Coverage
Excerpt: "The district court's opinion in Majestic v. Trustmark addresses numerous aspects of a controvery between an employer on the one hand and its stop loss carrier and MGU on the other. Though not dispositive of the case, the opinion does cover a broad swath of issues than can arise in the stop loss reimbursement setting . . . . In this post, I will note the facts that cost the employer stop loss coverage on several claims based upon discontinuities in the plan language and that in the stop loss policy." (Roy Harmon III via Health Plan Law)

[Guidance Overview] Cash Balance Plan Sponsor Liable for Deficient Disclosures, Appeals Court Rules
Excerpt: "A cash balance plan sponsor is liable for deficient communications about wearaway periods, the US Second Circuit Court of Appeals has ruled in a summary opinion with no precedential effect (Amara v. CIGNA). The appeals court upheld the lower court's order to determine benefits after a pre-PPA cash balance conversion using an 'A+B' approach (instead of the plan's opening balance approach) because the SPD didn't sufficiently alert participants to possible wearaways. The court did not reinstate the traditional formula, which plaintiffs argued was the proper remedy for a faulty '204(h)' notice." (Mercer LLC)

[Guidance Overview] Final Funding Regs and Benefit Restriction Notices for Single Employer Defined Benefit Plans (PDF)
2 pages. Also, information on a Phone Forum on Retirement Plan Distributions will be held October 28, 2009; Join Martin Pippins and Rhonda Migdail, from IRS Employee Plans Rulings & Agreements, for a 90 minute forum on recent retirement plan guidance. The forum will cover: the new required ?402(f) notice; rollovers, including the expanded Roth rollover rules; the 2009 required minimum distribution (RMD) waiver; RMD rules for governmental plans; and paid time off contributions." (Internal Revenue Service)

[Guidance Overview] Employer Liability for Termination of Group Life Insurance Coverage
Excerpt: "Generally speaking, employers are not familiar with the responsibility and potential liability for failing to notify employees of their right to convert group life insurance coverage to an individual life insurance policy upon termination of employment, or their right to apply for a waiver of premiums if they are disabled and absent from work. Within the past few years, there has been a wave of litigation brought by former employees and their beneficiaries complaining about the loss of group life insurance coverage due to misrepresentations made by employers about their group coverage and the failure of employers to inform terminated employees about their rights under the group life insurance plan documents." (Ford & Harrison LLP)

Senate Finance Committee Adopts New Pharmacy Benefit Management Disclosure Provision
Excerpt: "The SFC approved an amendment to its comprehensive health reform bill that would require pharmacy benefit managers (PBMs) to disclose contract provisions with payers and drug companies. But committee members rejected other controversial amendments, such as those that would have authorized the HHS secretary to negotiate drug prices or create an overall public option to compete with private insurers." (AISHealth.com)

[Opinion] Did a Unanimous Supreme Court Misread ERISA, Misread the Court's Precedents, Undermine Basic ERISA Principles, and Encourage Benefits Litigation?
Excerpt: "In Kennedy v. Plan Administrator of the DuPont Savings and Investment Plan (the 'Kennedy Decision'), a unanimous Supreme Court appeared to proclaim a 'bright-line rule' that plan documents determine benefit distribution rights. However, by misreading ERISA and its own precedents, the Supreme Court needlessly undermined basic ERISA principles with respect to the determination and the protection of ERISA benefit entitlements, the coverage of the prohibition on the alienation of pension benefits (the 'Alienation Prohibition') and the rules pertaining to QDROs." (Social Science Research Network)

Congressmen Want HIPAA Harm Threshold Eliminated
Excerpt: "Six members of the House of Representatives signed a letter written to HHS Secretary Kathleen Sebelius that urges HHS to repeal or revise the harm standard provision in HHS' interim final rule on breach notification. . . . The Congressmen, all but one of whom are Democrats, wrote they are 'deeply concerned' about the harm provision because it gives covered entities and business associates (BAs) a 'breadth of discretion' as they determine the level of harm to an individual whose PHI was inappropriately disclosed." (HealthLeaders Media)

[Guidance Overview] HHS's Reporting Form for HIPAA Breaches
Excerpt: "[The Department of Health and Human Services] has now published an online form for reporting breaches of unsecured PHI. The HHS form provides a checklist for plan sponsors who experience a breach of unsecured PHI. Plan sponsors can use the form to help them track breaches and to assure that appropriate preventive measures are in place." (The Segal Group, Inc.)

[Guidance Overview] Breach Notification Under the HITECH Act: Action Points for Employers Who Sponsor Self-Insured Group Health Plans (PDF)
Excerpt: "Because the Rule is currently effective and because sanctions will be imposed by HHS for failure to provide required notifications for breaches that are discovered on or after February 22, 2010, what should employers who sponsor self-insured group health plans begin doing now to comply?" (Porter Wright Morris & Arthur LLP)

[Guidance Overview] IRS Model 402(f) Notice
Excerpt: "Section 402(f) of the Internal Revenue Code (the Code) requires an administrator of a qualified plan and 403(b) arrangement to provide a written explanation prior to the distribution of an 'eligible rollover distribution.' Contents of the 402(f) notice must include a description of the direct rollover rules, the participant rollover rules, and the mandatory 20% federal income-tax withholding rules for eligible rollover distributions that are not rolled over. The notice also explains other taxation rules involving distributions and rollovers and has always been a great source of tax information for participants." (McKay Hochman Co., Inc.)

[Guidance Overview] IRS Guidance on Safe Harbor Distribution Notices; Automatic Enrollment/increase Arrangements; Contribution of Unused Paid Time Off to Qualified Plans
Excerpt: "The IRS recently published a myriad of guidance concerning new safe harbor rollover notices, additional information on automatic enrollment/increase arrangements and the contribution of unused paid time off to qualified plans. Here we review the rulings and notices." (JPMorgan Chase & Co.)

[Opinion] When SunAmerica Opinion Was Published December 2001, It Was Clear That Something Big Had Just Happened
Excerpt: "Not only did the Labor Department sanction an arrangement that, for the first time, allowed an investment management firm to offer advice on its own funds and be paid for that advice -- even if that advice impacted the compensation received -- it made the effort to make that decision public; IMHO, signaling to the industry that the model sanctioned in the Advisory Opinion could serve as a blueprint for other investment firms (and advisers) to follow in those footsteps. Indeed, it was issued not as a prohibited transaction exemption in a specific situation (though that was what had been requested), but as an advisory opinion on the program's structure." (PLANSPONSOR.com; free registration required)

[Guidance Overview] IRS Guidance on 2009 Waivers of Required Minimum Distributions; DOL Says Summary Prospectus Satisfies ERISA Section 404(c) (PDF)
3 pages. Excerpt: "The IRS has issued Notice 2009-82 providing needed guidance for employers on the waiver of 2009 required minimum distributions (RMDs), including sample plan amendments. The guidance also provides plan operational relief for the period of January 1, 2009 through November 30, 2009, rollover relief until November 30, 2009, and Q&As that address miscellaneous issues related to the waiver of 2009 RMDs. Separately, the DOL issued Field Assistance Bulletin (FAB) 2009-3 providing that the prospectus requirement for ERISA Section 404(c) compliance can be satisfied by furnishing participants with a 'Summary Prospectus,' a new short-form prospectus approved by the Securities and Exchange Commission (SEC) earlier this year as part of its enhanced disclosure framework for mutual funds." (Buck Consultants)

Short List of Important Dates to Remember
Excerpt: "The [list] provides insurance agents/brokers, employers and benefits professionals a checklist of key upcoming dates and deadlines related to health benefits. This does not constitute all of the deadlines applicable to employers and some deadlines may be different based on variations in plan year or plan design." (Infinisource)

[Guidance Overview] Third Circuit Holds It Was Fiduciary Breach to Fail to Disclose Reservation of Rights Clause at Retirement Meetings (PDF)
Pages 3-4 of 5 pages. Excerpt: "Although several courts have held that fiduciaries do not have to continuously communicate reservation of rights clauses when discussing retiree health benefits with employees, thiscase illustrates that courts nonetheless may closely scrutinize retirement communications to determine if retirees were making fully informed decisions to retire." (Proskauer Rose LLP)

[Guidance Overview] SPD Limit on Court Challenges Was Clearly Enough Displayed, 9th Circuit Rules
Excerpt: "An employer's inclusion of a one-year limit on worker lawsuits over disability benefit denials in its summary plan description (SPD) was reasonable, a federal appeals court ruled. The 9th U.S. Circuit of Appeals also chose not to apply the California regulation requiring that insurers explicitly inform covered individuals about statutes of limitations. There was no need to bring in the California rules because ERISA already contains -- and the plan followed -- broad and detailed disclosure rules to protect plan beneficiaries, the court decided in Scharff v. Raytheon, 2009 WL 2871229 (9th Cir., Sept. 9, 2009)." (Thompson Publishing Group, Inc.)

An Interview with ASPPA CEO Brian Graff
Excerpt: "Brian H. Graff is the Executive Director/Chief Executive Officer of the American Society of Pension Professionals & Actuaries (ASPPA). . . . Today, ASPPA is a national organization of more than 6,500 retirement plan professionals who provide consulting and administrative services for qualified retirement plans covering millions of American workers." (BrightScope Inc.)

[Guidance Overview] HIPAA Obligations Create Legal Challenges
Excerpt: "Until Sept. 23, when consumers' health information was accidentally disclosed, they might not have known about it. But under the new regulation, breaches must be reported to the Department of Health and Human Services and to the individuals affected. If providers cannot locate them, they must report the violation on their Web site and to the local media. The media must also be notified if a breach affects more than 500 individuals. Here's where the regulation gets a little murky . . . . It's left up to the businesses themselves to make fact-based determinations as to whether notification is necessary, based on whether there has been a 'significant risk of financial, reputational, or other harm' to the patient. 'It's a bit of a judgment call. We're waiting to see what that turns out as,' . . . ." (Wisconsin Law Journal)

[Guidance Overview] Online Form and Instructions Available for Reporting Breaches of Unsecured PHI to HHS
Excerpt: "EBIA Comment: Covered entities (including health plans) will likely appreciate this relatively straightforward form, as well as the ability to complete and file it online. It is worth noting that, for breaches affecting more than 500 individuals, ARRA requires that some of the information provided on this form be made publicly available by posting on the HHS website. ARRA also requires that OCR provide an annual report to Congress regarding the number and nature of breaches that are reported each year and the actions taken to respond to such breaches." (Employee Benefits Institute of America)

Retirement Savings: Better Information and Sponsor Guidance Could Improve Oversight and Reduce Fees for Participants
58 pages. Excerpt: "[GAO recommends that] Congress should consider (1) amending ERISA to require sponsors to disclose fee information to facilitate comparisons, and (2) giving the Department of Labor (Labor) specific authority over certain plans. Also, GAO recommends that the Internal Revenue Service (IRS) develop guidance on sponsor involvement, collect additional data on 457(b) plans, and share more information with financial regulators. Labor and IRS agreed with our recommendations, although IRS stated that it will continue sharing information with regulators using its current methods." (U.S. Government Accountability Office)

[Guidance Overview] Tenth Circuit Notes Circuit Split on Contractual Limitations Periods
Excerpt: "ERISA does not contain a limitations provision for private enforcement actions under 29 U.S.C. ? 1132. Thus, we generally 'apply the most closely analogous statute of limitations under state law.' 'Choosing which state statute to borrow is unnecessary, however, where the parties have contractually agreed upon a limitations period.' Salisbury v. Hartford Life & Accident Ins. Co. (1oth Cir.) (9/30/2009) (internal citations omitted) The Tenth Circuit has rendered a decision resoundingly affirming the validity of an ERISA plan's contractual limitations period in an opinion that highlights a circuit split on the issue." (Roy Harmon III via Health Plan Law)

[Guidance Overview] QDRO Cannot Override ERISA Rules for COBRA and Retirement Benefits
Excerpt: "The U.S. District Court for the Eastern District of Pennsylvania has ruled that the former spouse of an employee cannot get continued health care benefits as dictated by a qualified domestic relations order (QDRO) because the plan was not notified of her divorce within the 60-day notice requirement for a qualifying event under the Consolidated Omnibus Budget Reconciliation Act (COBRA)." (PLANSPONSOR.com; free registration required)

[Guidance Overview] Mandatory Electronic Filing of 5500s to Begin in 2010
Excerpt: "The Department of Labor has taken another step toward requiring electronic filing and disclosure of all Form 5500 annual reports by announcing that paper filing will no longer be accepted for filings for the 2009 plan year. In a related development, sponsors of defined benefit pension plans who maintain an intranet website for communications with employees must post portions of the plan's Form 5500 on the website beginning with the 2008 annual report." (Seyfarth Shaw LLP)

Building Participant Confidence In A Challenging Market Environment (PDF)
Excerpt: "To keep participants focused on the long term, communicating early and often is essential. In this publication, NAGDCA will share some thoughts on the following questions to help you build or fine-tune a communication and education strategy: * What should plan sponsors know? * What are the participant behaviors to watch for? * What messages are helpful? * Where can you turn for resources to meet the challenge?" (National Association of Government Defined Contribution Administrators)

ICMA-RC Introduces New 'It Pays to Save' Web Site
Excerpt: "[The web site] includes: [1] A comprehensive white paper and a video discussion about the research and strategy involved in developing the campaign, featuring ICMA-RC Vice President of Field Sales Keith Sendall. [2] A selection of ready-to-use materials to promote saving among both current retirement plan participants and employees who do not currently participate. [3] Links to other online resources about saving for retirement." (ICMA-RC)

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