QDROphile

If this is for a 401(k) plan, someone needs securities law advice more than a plan document.

If you are reporting correctly and I am reading you correctly, your HR director is wrong. You are correct that it would make mincemeat of the uniform coverage rule. I would say something unkind about the national administrator, but I have doubts that it agrees with your HR director.

COBRA is required, but most FSAs are subject to a special rule that requires an offer of COBRA continuation if the participant has "underspent" the account. In that situation it is economically rational, even at a 102% premium.

If you have an FSA, your coverage probably ended as of Jan 31, when you were last employed. The uniform coverage rule does not require coverage for the entire year if you are not eligible for coverage for the entire year. It does not matter what the plan year is. If you have an unspent balance as of the end of coverage, you should be offered COBRA and you can recoup your "contributions" by electing COBRA coverage. However, you could get into leapfrog with the COBRA premiums if your medical expenses are not bigger than the unspent balnce plus the COBRA premium for February. COBRA is probably available only through the end of the plan year, so the plan year is relvant for that purpose.

For certain plans, the law requires that benefits be paid in the form of a joint and survivior annuity unless the spouse consents to another form of payment. The law does not prevent payment from starting, but restricts the form. See section 401(a) (11) of the Internal Revenue Code. Without knowing more about the plan, no one can answer your question. Most plans except for IRA-based plans are restricted in some way from paying benefits whenever the particpant may want to receive them. As an oversimplified generalization, benefits are usually not payable before termination of employment. Different rules apply to different plans, with similar effect. In addition to what the law requires, a plan may be designed to be more restrictive concerning spouse consent and when particpants are eligible to start benefits. Most plans have a summary plan description, which is provided to all particpants and is available upon request. The SPD will describe the requirements for distributions, but will probably not tell you if the requirement arises because of law or plan design, and it probably does not matter, no matter how you feel about the restrictions. If the plan is holding up payment beyond what the SPD says, then it is possible that something is wrong.

Shouldn't the plan adminstrator be giving directions in this matter, which involves certain interpretations and judgments necessary in connection with terms adopted by the plan administrator?

If the participant is eligible on the last day of the year, the extension aplies even if they are not employed in the next year. Your plan amendment should give you adequate guidance on this point. If it does not, you might think about whether or not your amendment is valid.

The employer will not need the cafeteria plan if the employer will cover the entire premium. You don't think the arrangement falls within the ERISA definition of welfare benefit plan?

The next time you encounter a Medicare situation, make sure you apply the key word, "entitled". I mistakenly used "eligible" in at leat one of my posts.

Not under an FSA but the employer can adopt a plan that provides for payment or reimbursement of premiums for insurance identiifed by employees and the plan can be funded through the cafeteria plan. You will need help from someone understands how this works.

Zora: To answer your question to P-Jay, the special rule for 36 months of coverage for beneficiaries from participant's Medicare eligibility date applies only when Medicare eligibility begins before the qualifying event of termination of employment/reduction of hours. A day one way or another can have a significant effect. If if the participant became entitled the day before retirement, the spouse could get 36 months. As discussed above, the plan terms can be more generous.

If you have no qualifying event other than termination, I don't see how one can get to 36 months. Entitlement to Medicare could be a qualifying event with a 36 month period, but only if entitlement would result in loss of coverage,. You did not indicate that Medicare entitlement had anything to do with loss of coverage under any circumstance.

Why is she losing coverage?

Although qualified government plan and government 457(b) plan distributions can be eligible for rollover to a 401(k) plan, the 401(k) plan has to allow it and many will not, especially with respect to 457(b) plans.

Depends on facts and circumstances, clouded by paucity of authority, and the IRS is skeptical about the arrangements. You need expert help.

Since the MSA or some related document can be a domestic relations order, you always have to determine what constitutes the domestic relations order that is being proposed for qualification. Is it a single document or is it a combination of documents? For example, some documents expressly incorporate the terms of another; some documents incorporate by implication. You have to consider all the terms of the order, whatever you determine the order to be. My policy is to try to limit the potential for confusion because of multiple documents and I take a very agressive position against any effect of another document. In the determination I define the document that is the order. If any other doucment is referred to or submitted with that order, I expressly provide that the terms of the other documents have not been taken into account and shall have no effect (if that was not what was intended, they can appeal the determination). I want to stay within the four corners of a single document if possible. Sometimes it is not possible, depending on how the documents are drafted. You have to apply your judgment, so no single answer applies in all cases, but I think your boss's policy is at the dangerous extreme and I think it makes for more work than your clients should have to pay for. In particular, I completely disagree with the idea that the plan administrator's job includes reconciliation of a proposed QDRO with any underlying or preceding order; that is a matter for state law, not qualification or administration requirements. In fact, the plan administrator has no right to request any other document or information. The plan administrator reviews what is presented. If something essential is missing, the plan administrator identifies what is missing based on what is presented. How the gap gets filled is not up to the plan administrator. Digging deeper is asking for trouble. You can find cases that take overactive plan administrators to task.

The issue about FSAs is relevant if the employee wants to reduce the orignal FSA election because insurance will now pick up some dental costs that that the employee expected to pay out of pocket (and then be reimbused). Or now that the employee has insurance, the employee might be able to afford having dental work that the employee would have skipped, but has to pay an affordable deductible or co-pay. The employee would like to increase the FSA election to cover the out of pocket amount.

I am unfamiliar with decisions that say federal law prevents assignment of ancillary disability benefits. I am aware that some decisons say that a "QDRO" can assign welfare benefits, although such decisions are questionable because they do not relate to terms of the statutes (which apply to retirement plans), and commentators and other decisions observe that they are unnecessary becuase the benefits can be assigned without a qualified order. Subject to my ignorance about case law authority to the contrary, it seems to me that the disability benefits can be assigned under one theory or the other if state law allows and the order is properly drafted. The terms of the plan, and its QDRO procedures, and the terms of the order, are of primary importance. If the terms are not all in line, the former spouse does not get any part of the benefit. Most orders are inadequately written to provide an interest in disability benefits that are not , in the view of the plan, retirement benefits. It might be interesting if the plan provides that the ancillary disability benefits simply cannot be assigned and the plan terms do not compromise the ability of an alternate payee to receive "true" retirement benefits whether or not the particpant receives disability benefits. Making sure that the right to receive retirement benefits is not compromised requires a lot of thought.

mjb and I respectfully disagree about the effect of P's retirement on W#1's ability under federal law to obtain a portion of the participant's retirement benefits. Start of P's retirment benefits will affect what W#1 can get, but will not preclude an interest in the payments. Certain courts have ruled along the lines of mjb's position when the order was first presented after the participant's death. Your situation is different in several respects and I think those decisons were wrong. We agree that the plan cannot advise anyone about what course of action to take. We agree that competent legal counsel should be consulted.

You are asking the right questions and are making sense of the issues. The most important question is the nature of the disability benefit in relationship to the retirement benefit. You make it sound like they are essentially two different benefits. The plan should design its QDRO procedures accordingly. At first blush, I would treat the disability benefits as a stream of payments and require a separate award with respect to the stream if any of the disability payments are to be awarded to the alternate payee. The separate award with respect to the retirement benefits could be a "separate interest" although that term is misleading because a truly separate interest is unlikely and usually not advisable (as well as legally impossible with respect to some technical matters). Unless there is a support issue, I suspect that the alternate payee would not be awarded any of the disability payments. There are other ways to design the QDRO procedures, and you need to make the most of the statutory provision that prevents orders from providnig for benefits that the plan is not designed to provide. By the way, the plan does not "request" or "ask for" anything.

Mind the dfference between rollover and transfer and your gut reaction is correct. Then mind the need for the appropriate infrastructure.

So if the form has been a safe harbor amendment, what would the plan sponsor have done to adopt the amendment properly? For example, if the plan sponsor were a corporation, the proper procedure may have been for the Board of Directors to adopt or approve the amendments, independent of the act of putting a signature on the page. The documentation of the action taken to adopt the amendment, or to authorize the signing of the amendment document, may itself be sufficient to pass the requirement for the formality of amendment even if the signed "amendment" document was not the correct document. I am being somewhat facetious. It looks like your plan sponsor operates at such a low level of consciousness that it would not even wonder what adoption procedure was required to precede the signing.

Assignment of wages avoids the payroll deduction question, but most plans consider it too much trouble, if they ever thought about it in the first place.

You need advice about correction procedures and options from someone with enough knowledge and experience to apply the guidance to particular facts and circumstances. While some corrections are strictly prescribed, the IRS procedures provide flexibility. I think the most you can expect from this board is a pointer to the guidance you found already. You may pay more for help in supporting your affection for fairness than it would cost to follow established convention. There are various other posts related to your subject, with various positions about what ought to be the result.

The plan terms are the sole source for determining benefit payment options unless you are open to the idea of amending the plan. If you are, start with section 401(a) (9) of the Internal Revenue Code and related regulations.