Leaderboard

I’m aware of EBSA’s bulletins, which describe non-rule interpretations that might allow an employer, without establishing or maintaining an ERISA-governed plan, to pay employer-provided contributions into a health savings account for its employee, even one who had not created an account or assented to receiving a contribution. Likewise, an employer might restrict which health savings account providers the employer allows for employer or payroll-deduction contributions. Health Saving Accounts, Field Assistance Bulletin No. 2004-01 (Apr. 7, 2004), Health Savings Accounts—ERISA Q&As, Field Assistance Bulletin No. 2006-02 (Oct. 27, 2006). A court need not defer to any of these interpretations. See, e.g., Christensen v. Harris County, 529 U.S. 576, 586–88 (2000) (rejecting an argument that the Court should give Chevron deference to a Labor department opinion letter, and further rejecting even Auer deference); Bussian v. RJR Nabisco Inc., 223 F.3d 286, 296–97 (5th Cir. 2000) (rejecting the Labor department’s argument that the court should give Chevron deference to an interpretive bulletin). Yet, I recognize many employers follow the bulletins’ interpretations. My questions about what some summary plan description might explain really are open, without any presumed conclusion. Thank you for the idea that some employers might prefer to say little or nothing about Health Savings Accounts in a high-deductible group health plan’s summary plan description because a discussion might unwisely suggest, or be argued as, the employer’s implied endorsement of, or involvement with, the HSAs the employer seeks to treat as a non-plan.