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Both the AA and the BPD comprise a plan sponsor's plan document. Therefore, to the extent a provision is delineated in the BPD without any corresponding AA selection, the BPD governs and should be followed. Not everything can/will/need to be outlined/selected in the AA and anything that is not expressly provided in the AA via a permissible selection is subject to any BPD mandates.

I've removed the attachment, so that personal information will not be available here via BenefitsLink.

That's strange because (as you noted) it's clearly prohibited by the MSP rules for employers with 20+ employee companies. I'd go back to BCBS to try to understand why they quoted the Medicare-eligible population differently. Here's an overview: https://www.newfront.com/blog/medicare-secondary-payer-employer-size-requirements 2024 Newfront Medicare for Employers Guide Here's the relevant cites: 45 CFR §411.108 (a) Examples of actions that constitute “taking into account”. Actions by GHPs or LGHPs that constitute taking into account that an individual is entitled to Medicare on the basis of ESRD, age, or disability (or eligible on the basis of ESRD) include, but are not limited to, the following: (1) Failure to pay primary benefits as required by subparts F, G, and H of this part 411. (2) Offering coverage that is secondary to Medicare to individuals entitled to Medicare. (3) Terminating coverage because the individual has become entitled to Medicare, except as permitted under COBRA continuation coverage provisions (26 U.S.C. 4980B(f)(2)(B)(iv); 29 U.S.C. 1162.(2)(D) ; and 42 U.S.C. 300bb-2.(2)(D) ). (4) In the case of a LGHP, denying or terminating coverage because an individual is entitled to Medicare on the basis of disability without denying or terminating coverage for similarly situated individuals who are not entitled to Medicare on the basis of disability. (5) Imposing limitations on benefits for a Medicare entitled individual that do not apply to others enrolled in the plan, such as providing less comprehensive health care coverage, excluding benefits, reducing benefits, charging higher deductibles or coinsurance, providing for lower annual or lifetime benefit limits, or more restrictive pre-existing illness limitations. (6) Charging a Medicare entitled individual higher premiums. (7) Requiring a Medicare entitled individual to wait longer for coverage to begin. (8) Paying providers and suppliers no more than the Medicare payment rate for services furnished to a Medicare beneficiary but making payments at a higher rate for the same services to an enrollee who is not entitled to Medicare. (9) Providing misleading or incomplete information that would have the effect of inducing a Medicare entitled individual to reject the employer plan, thereby making Medicare the primary payer. An example of this would be informing the beneficiary of the right to accept or reject the employer plan but failing to inform the individual that, if he or she rejects the plan, the plan will not be permitted to provide or pay for secondary benefits. (10) Including in its health insurance cards, claims forms, or brochures distributed to beneficiaries, providers, and suppliers, instructions to bill Medicare first for services furnished to Medicare beneficiaries without stipulating that such action may be taken only when Medicare is the primary payer. (11) Refusing to enroll an individual for whom Medicare would be secondary payer, when enrollment is available to similarly situated individuals for whom Medicare would not be secondary payer. CMS MSP Manual: https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/msp105c02.pdf 10 -MSP Provisions for Working Aged Individuals (Rev. 11755, Issued:12-21-2022, Effective: 01-23-2023, Implementation: 01-23-23) Pursuant to 42 CFR § 411.100, and further specified in § 411.170 and § 411.172, Medicare pays secondary to GHP coverage for individuals age 65 or over if the GHP coverage is by virtue of the individual's current employment status or the current employment status of the individual's spouse. Health insurance plans for retirees or the spouses of retirees do not meet this condition and are not primary to Medicare. The law requires employers (as defined in Pub. 100-05, Chapter 1) to offer to their employees age 65 or over and to the age 65 or over spouses of employees of any age the same coverage as they offer to employees and employees' spouses under age 65. For example, a plan may not provide benefits that are less for individuals age 65 or over or charge policyholders premiums that are higher for individuals age 65 or over since this would create an incentive for these individuals to reject the GHP coverage and make Medicare the primary payer. This provision applies whether or not the individual age 65 or over is entitled to Medicare. This equal benefit rule applies to coverage offered to full-time and part-time employees. CMS accepts that an individual attains a particular age on the day preceding his or her birthday.

Agreed, and personally, I would not include. Parallel question - if plan accepts rollovers from employees before becoming participants and an employee does such a rollover but was not a participant as of EOY, would you include them?

Talked to Cleveland based lawyer friend, he suggested Gary Shulman and QDRO Consultants, Inc.

The Instructions for a 2023 Form 5500 report include this: Line 6g. Enter in line 6g(1) the total number of participants included on line 5 (total participants at the beginning of the plan year) who have account balances at the beginning of the plan year. Enter in line 6g(2) the total number of participants included on line 6f (total participants at the end of the plan year) who have account balances at the end of the plan year. For example, for a Code section 401(k) plan, the number entered on line 6g(2) should be the number of participants counted on line 6f who have made a contribution, or for whom a contribution has been made, to the plan for this plan year or any prior plan year. Defined benefit plans do not complete line 6g. https://www.dol.gov/sites/dolgov/files/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/form-5500/2023-instructions.pdf Perhaps a reading of that text is that either count includes only a person who fit both conditions: she had an account balance and, at the specified time, was a participant. A few potential lines of reasoning: Even if a person has an account balance, that does not make her a participant. That an amount is mistakenly credited does not mean the individual had (in the sense of possessed) an account balance. That an employer paid a contribution into the plan’s trust does not mean that any portion of that contribution was for a person who was not a participant. This discussion is not advice to anyone.

If a plan accepts an individual’s rollover contribution and credits the amount to the individual’s account, she is a participant, at least within ERISA § 3(7)’s meaning. That an individual has not met the plan’s conditions for sharing in a nonelective contribution or matching contribution, or even for eligibility to elect an elective-deferral contribution, does not mean that the individual is not a participant. A textualist, but acontextual, reading of the line 5 instructions might support a different finding for Form 5500 reporting. But caution suggests counting an individual who has an account balance, even if she has not entered the plan for anything other than the rollover contribution.

Then it would appear the statutory exclusion for non-resident aliens can be used provided such language is in the plan or, if not in currently, then amended in prior to this employee's otherwise entry date.

Maybe a stupid question, but did you look at the average benefits test for coverage of the small plan? If yes, and that does not pass either, is there a defined failsafe in the small plan's document? If not, could an 11(g) amendment to the small plan allow for change in testing method to enable aggregation? Regarding #4, yes, aggregation is for coverage, nondiscrimination and BRFs, all or nothing.

Just an update - The portal is truly not open until mid-April apparently.

I definitely agree with David Rigby. Maybe contact https://qdropartners.com/ who are located in Ohio.

If the participant vests on a separation from service for any reason, then the benefit is already vested. While a noncompete can prevent vesting, that happens only if the person has to avoid competing for some defined period of time. If the person can get out of the noncompete by separating from service, it would be just like any other situation in which someone gets the benefit regardless of when they terminate.

I would check whether this plan is aggregated with another for the NHCEs, and if not I would inquire whether someone has thought through the 410(b) issue.

Just my opinion, you should NOT be posting your personal information on this public site.

It would help to get clarification on the relationship between the worker and the Employer of Record (EOR) and the relationship between the worker and the prospect. Some EORs are independent companies and some are PEOs. Under the PEO structure, the prospect could be a co-employer of the worker and the prospect should have provisions in the plan to specify if the worker meets the plan's eligibility requirements. If the EOR is the worker's employer and the prospect is not, then the EOR may have a US retirement plan and the worker may be eligible in the EOR's plan. One possible indicator of the prospect/worker relationship is whether the prospect gets a tax deduction for the compensation paid to the worker, or the prospect only gets a business tax deduction for the fees it pays to the EOR.