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What is a DOL certification for an ERISA plan?


Guest Cgross

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Guest Cgross

We're working on a subrogation case and the personal injury attorney who is representing the participant has asked for:

"certification from the US Secretary of Labor that our self-funded plan is

an approved ERISA plan".

I'm new to this process but can't find any reference in the ERISA regs that a certification is actually given by the DOL, just requirements for the plan to submit information and filings.

Can anyone shed light on this?

Thanks!

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This sounds like something from back when plans were required to file plan documents with DOL. Ask the requestor for the authority for the request. We deal with a lot of plaintiff attorneys. They are not always correct in what they ask for. By the way, what type of authorization did they provide you with on behalf of their client?

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Guest Cgross

We are the health plan, and we require the attorney to supply a signed authorization from the member for the release of any PHI related to the inquiry. Is this the type authorization to which you refer?

(I really appreciate your help on this...)

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He or she is trying to find out if it's an "ERISA plan" because that will determine how he or she needs to deal with the plan. Had a local personal injury attorney tell me that that was a hot sub-area now related to PI work....whether a plan was an ERISA plan or not....b/c if it was then there were extra hoops to jump through, etc..... The local PI attorney said he knows of attorneys in the DC area who have specialized in reviewing plan documents/materials to help PI attorneys determine if a particular plan is governed by ERISA or not.

Doesn't really help as to the specifics but adds some background as to the nature of the request.....

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Guest Cgross

We're in NC which would not allow subrogation if it were a fully insured plan.

Because of that we've had requests for SARs', copies of form 5500 filings, plan documents; all of which we've supplied. This one has me stumped.

The plan document clearly excludes charges for which a third party is liable, but we will pay claims with a signed statement from the member stating they will reimburse the plan for monies paid. The plan does not generally seek full reimbursement, but will allow for negotiation for attorney's fees, etc.

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The only certification that I have ever heard of a being given out is for MEWAs. which really is the acceptance of the filing of the M-1 form. I have never heard of the DoL certifying anything else.

I suggest that you ask him what he means and in what form he has ever seen this "approval" etc.

Maybe all he needs is something showing that F 5500s have been filed. I do not know of any receipt of filing or acceptance of filing that might be available from the DoL.

George D. Burns

Cost Reduction Strategies

Burns and Associates, Inc

www.costreductionstrategies.com(under construction)

www.employeebenefitsstrategies.com(under construction)

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I'm not sure why you would need help determining whether a plan is ERISA or not. It seems pretty simple to me. We have had certain providers asking us for "ERISA information" that they think they are entitled to. They don't know what it is they are requesting, but they went to a seminar and the seminar provider told them to ask for it. We respond by giving them the plan documents and letting them look for it themselves. Other than the MEWA certification that was mentioned, I don't know of any other certification. If you have provided them with the plan document (which they have a right to request), that should be sufficient.

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I don't disagree with your statement. I just meant that I don't think it's too difficult to prove you are an ERISA plan. Either you meet the definition (which is pretty broad) or you don't. You don't need a certification that you are. It's true that if you don't have the proper documents in place you are going to have a more difficult time on some issues and defenses but you're still an ERISA plan.

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This could be (and most probably is) giving the personal injury attorney too much credit, but it could be that he or she is savvy enough to realize that self-funded medical plans are not subject to state insurance law, and so he or she may really care whether or not the plan is self-funded. That is because the remedies and damages that are available under state insurance law may be vastly different than those available under ERISA.

Although it is a rarity, I have seen litigators that are knowledgeable enough about ERISA to operate on that level.

Kirk Maldonado

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