Electronic Distribution of Benefits Information

[Guest Marie]

As the electronic distribution regulations say an employee has to affirmatively consent to receive benefits information electronically, are employers doing this? Or are any employers posting or sending out a notice saying distribution will be electronic unless a person opts out and gives instructions on how to opt out.

[david rigby]

As the electronic distribution regulations say an employee has to affirmatively consent to receive benefits information electronically...

Not intending to negate the original question, IMHO, this is a special case, and does not apply to all e-distributions.

Anyone else?

[Guest Form5500]

Plan administrators may provide ERISA Title I disclosures electronically under the guidelines released by the DOL. ERISA Title I disclosures include:

• Summary plan descriptions,

• Summaries of material modifications,

• Summary annual reports,

• Individual benefit statements,

• COBRA notifications,

• Qualified domestic relations order notifications,

• Qualified medical child support order notices,

• Information containing participant loans under ER ISA 401(b)(1), and

• HIPAA certificates of creditable coverage

The regulations set forth guidelines for providing disclosures to a) employees with work-related computer access, and b) other plan participants and beneficiaries who consent to receive disclosures electronically.

Employees With Work-Related Computer Access

ERISA disclosures may be delivered electronically to employees that

• have the ability to effectively access documents furnished in electronic form at any location where the employee is reasonably expected to perform his duties, and

• are expected to have access to the employer's electronic information system as an integral part of those duties.

Beneficiaries and Other Plan Participants That Consent to Receive Disclosures Electronically

A plan administrator must obtain written consent prior to electronically delivering ERISA disclosures to beneficiaries and other plan participants that do not have work-related access to a computer. The consent may be received in either electronic or paper form. A consent must include a clear and conspicuous statement that explains:

• The types of documents to which the consent will apply;

• That consent can be withdrawn at any time without charge;

• The procedures for withdrawing consent and for updating the address used for receipt of electronically furnished documents;

• The right to request and obtain a paper version of an electronically furnished document, including whether the paper version will be provided free of charge; and

• Hardware or software needed to access and retain the documents delivered electronically.

If the plan administrator changes its hardware or software requirements, it must provide a new notice and obtain a new consent.

Plan administrators are required to use measures reasonably calculated to ensure actual receipt of the material by plan participants and beneficiaries. The regulations provide some guidance on what measures are reasonably calculated to ensure actual receipt when electronic delivery is used.

• Notices. A notice must be sent either electronically or in paper form to each plan participant or beneficiary at the time the document is provided electronically. The notice must a) indicate the significance of the document when it is not otherwise reasonably evident as transmitted, and b) explain the participant's right to request a paper copy.

• Confirmation of Receipt. The plan administrator must make use of electronic mail features such as return-receipt or notice that the email was not delivered. The plan must also conduct periodic reviews to confirm receipt of the transmitted information.

• Confidentiality. When personal information pertaining to an individual's benefits or accounts is transmitted electronically, steps must be taken to protect the confidentiality of the information.

• Style, Format, and Content Requirements. Documents delivered electronically must continue to be furnished in a manner consistent with the applicable style, format, and content requirements contained within ERISA. For example, summary plan descriptions provided electronically must contain all the disclosures otherwise required by ERISA's disclosure requirements. The Department of Labor's comments within the preamble to the regulations indicate that the appearance of paper and electronic versions need not be identical.

• Paper Copy. Plan participants and beneficiaries are entitled to receive a paper copy of any ERISA disclosure provided electronically. Where a plan participant or beneficiary requests a paper copy of a document originally provided electronically, the general rules governing whether a plan administrator may or may not charge for paper copies apply.