mal

This is an electrical contractor, not a manufacturer.

Consider this factual scenario for a CONSTRUCTION industry defined benefit plan. Company A has two divisions (electrical and mechanical). They contribute to a separate plans for this work. The electrical plan has significant withdrawal liability. Company A decides to sell their business to an unrelated buyer. Immediately after buying the company, buyer closes the electrical division. Questions... Does WL attach to the seller at the point of sale? They did not request a waiver or post the necessary bond. Would the closure of the electrical division affect the answer? Under 4203 of ERISA, a construction industry employer may close his business without incurring WL so long as he doesn't reopen (non union) in 5 years. Therefore, absent the sale, the buyer would seem to be off the hook Input is appreciated.

The doctor does not have to see you 3 days in a row. If you see a doctor on Monday and he tells you to take a prescription and stay off work until Thursday, that is likely FMLA qualifying. The key may be to get a letter from the doctor certifying that you were unable to work for the periods in question. Also, don't be so sure that a sinus infection qualifies you for leave. The regs specifically mention the flu and colds as non-qualifying events.

A sinus infection is generally not a "serious health condition" but under the circumstances you describe (incapacity of 3 or more days along with a doctor's visit and prescription) you probably qualified. The DOL does investigate the complaints, and for the most part does a pretty good job. You may want to get on their website and pull information backing your claim...then turn it over to HR and argue for both periods to be FMLA time. If they don't budge, file an administrative complaint. It is not a difficult process and can probably be handled without an attorney...unless you are fired.

Assuming a union and multi-employer bargaining unit have signed a declaration of trust to create a plan, is there any reason the trust assets couldn't be maintained within a union subaccount?? There is joint administration and audits of the account. I know the usual procedure is to set up a custodial account with a bank, but is it required?

Assuming the participant continues to refuse to sign the subro agreement (as required by the plan) I believe I am going to file a motion to dismiss based on the fact he has not exhausted his internal claim procedures. The downside to this approach is that he may sign the agreement immediately after we are released from the state ct action. If so, I will be moving to intervene and jump back into the suit. Any hope the Sup. Ct. hears a case to clarify their Great West decision???

Because prior to the QualChoice case it was not meaningless. Even now we still have potential offset rights if they refuse to reimburse the plan. Additionally, the plan terms require a signed lien form before we pay benefits. It just seems that if this were challenged, a judge could look at QualChoice/Great West and be skeptical of the refusal to pay benefits based solely on the lien acknowledgement form.

QualChoice makes it impossible to enforce subrogation or reimbursement rights once the fund has paid the benefits and been stiffed by a participant.... Our only basis for not paying the benefits is that the participant has not signed the form which acknowledges the plan's subrogation/reimbursement interest.... Given our inability to enforce our subrogation rights, do the fiduciaries act in an arbitrary fashion by insisting the participant sign the lien form? On one hand they are adhering to the plan terms, but on the other they are relying upon a legally meaningless form to deny benefits.

A self insured ERISA health plan has been sued in state court as part of a personal injury lawsuit. One count of the complaint is essentially a claim for payment of benefits that as of today have not been paid. (The member has refused to sign the subro agreement as clearly required by the terms of the plan.) Prior to the QualChoice case which came out earlier this month in the 6th Circuit, I would have simply removed the case and gone through the constructive trust/equitable lien hoops. However, QualChoice effectively killed these options within the 6th Circuit. Therefore, if I remove the case, the federal court is likely to give us a quick boot. I am tenatively planning to discuss this matter with the P.I. attorney and have his client sign the subro agreement. This will allow us to pay the bills and participate in the state court action under a true subrogation theory (plan v. tortfeasor). Questions... 1. What are your thoughts on this approach? 2. Does the state court have subject matter jurisdiction over an action brought by the ERISA plan against the 3rd party tortfeasor? 3. Any issues or options I am missing?

A self insured ERISA health plan has been sued in state court as part of a personal injury lawsuit. One count of the complaint is essentially a claim for payment of benefits that asf today have not been paid. (The member has refused to sign the subro agreement as clearly required by the terms of the plan.) Prior to the QualChoice case which came out earlier this month in the 6th Circuit, I would have simply removed the case and gone through the constructive trust/equitable lien hoops. However, QualChoice effectively killed these options within the 6th Circuit. Therefore, if I remove the case, the federal court is likely to give us a quick boot. I am tenatively planning to discuss this matter with the P.I. attorney and have his client sign the subro agreement. This will allow us to participate in the state court action under a true subrogation theory (plan v. tortfeasor). Questions... 1. What are your thoughts on this approach? 2. Does the state court have subject matter jurisdiction over an action brought by the ERISA plan against the 3rd party tortfeasor? 3. Any issues or options I am missing?

Would that be necessary? The LMRA (29 usc 186) requires the trust document to include a procedure to break a deadlock. If the parties cannot agree on a neutral, either party may petition the District Court to make such an appointment.

I called an EBSA field office yesterday afternoon and was told they have no additional information. They do not know when the regs will be finalized.

Has the DOL taken any action to finalize the COBRA regs it issued last Spring? The last I heard the implementation date was postponed past January, 2004.

I would take a hard look at the language in the SPD/Plan document. Assuming they are clear on this issue, hour/dollar banks are not vested rights. Most of our SPD's make it crystal clear that the participant has no vested stake in the credits and that the Trustees may vote to eliminate the banks at any time.

It is very common to require Union members to participate in the multiemployer health plan. However, the plans I work with do not require employees to pay any part of their monthly premium. Assuming there is no employee contribution due, I believe the participation requirement must be set forth in the applicable collective bargaining agreement. The Trustees could not demand universal participation if the CBA covers only certain categories of employees.

We are involved with a Fund that has been in a struggle with a delinquent employer over the last several months. The employer generally runs 2-4 months behind, but eventually pays the contributions, and assessments. This employer is now a full 6 months behind and there is some concern he could be heading to bankruptcy court. The Trustees have requested the business manager remove all manpower to put pressure on the employer and to limit liability. Given the poor employment prospects in the area, the BM is hesitant to pull the members. Thus, a rift is developing between the Trustees and the Union. What options does the Board have to limit its exposure? Does a health plan have more options than a DB plan?

The designated record set maintained by a Plan must be kept for 6 years. I am not aware of any requirement that would bind an employer to keep that information... unless they are treated as a business associate??

I would view this as akin to the actual selection of the mutual funds or investment options that are made available to participants. Fiduciaries must act prudently in choosing these options and can be held responsible if they fail to do so. In your case, the fiduciaries are making an informed decision that a different asset allocation is in the best interests of the participants. In my opinion, it would be very difficult for a participant to establish any culpability for this decision...regardless of whether the fund has 404© protection or not.

I agree that the administrator should keep the blinders on and only worry about whether the order meets the QDRO requirements. When the ex-wife transfers the money to the husband, won't there be a second tax attached to the transfer? It seems as if they will pay once on the distribution and a second time for the transfer.

A participant had a stormy relationship with his wife and were constantly separating. He died and she has come forward to claim a QPSA. However, some coworkers believe they may have been divorced prior to his death. She says they were not. How does an admin effectively research this issue? There is no record of a divorce on the county records, but they could have done it elsewhere.

The regulations do refer to anyone who stands in loco parentis to a child, but childcare concerns are not an FMLA event... even if they arise due to illness of a parent.

Well, what are they called???

Before I go on a wild goose chase, does anyone know if there is a plan that could accomplish the following: 1. Create individual accounts using pretax dollars; 2. Allow these dollars to be used to make self payments to an industry health fund; 3. Allow the dollars to remain in the account after retirement and be used to pay the retiree's share of his health premium; 4. Allow a high ceiling on the maximum amount permitted to accumulate in the plan. Thanks.

We are in the process of getting the information to the stop loss carrier to determine their stance. Another decent idea that was raised by our consultant was to offer to pay the claim up to the UCR amount in the area. This would likely keep us below our stop-loss attachment point and make the participant happy. I would still like to see the stop-loss insurer agree to this ahead of time.

A self funded health plan has been asked to preauthorize a bone marrow transplant scheduled for next week. The plan specifically INCLUDES bone marrow as one of the covered transplant procedures. However, it EXCLUDES experimental procedures. The participant is included in a clinical study at a major hospital. While the FDA has apparently given its approval to the basic procedure, our TPA has said that it is still considered experimental in nature. They recommend we deny the preauthorization. So, problem #1 is the conflict in plan language, but to further complicate this issue, our TPA has said that the stop-loss carrier will not pay on the claim....(if it is deemed experimental.) How is this best handled? My initial reaction is to deny the preauthorization and contact the participant to let him know of the problem and the appeal rights. In a perfect world the participant would back out of the clinical trials, and undergo the normal procedures... or the stop loss carrier would agree to treat the procedure as a normal bone marrow transplant. Suggestions??