rocknrolls2

If anyone were interested in saving these Augean stables (one of Hercules' 12 labors), they should demand a hefty retainer up front. Once the clientvrealizes the magniyude of the monster they have vcreated, I am sure that the owners will develop a convenient memory and forget that you are trying to save them from plan disqualification. At some point. their lack of memory will be converted to blame cast upon you. the retainer will help protect you from loss of interest when their memory conveniently forgets your role in this and from the indignities you will be sure to endure during the blame phase.

Because there is a higher incidence of COVID-19 positive test results for residents of a long-term care facility (i.e., a nursing home), State X mandates that all residents and staff at the facility be tested for COVID-19 by a specified date. Those individuals who test negative are required to be retested within one week to rule out a false negative on the first test. There will only be a second retest if and to the extent that the Centers for Disease Control and Prevention mandate it. My question is, in light of the no cost-sharing of COVID-19 testing imposed by the Families First Coronavirus Response Act, as applied to a self-funded plan, does this mean that the plan (or employer) is saddled with the cost of conducting the testing? Can the plan deny coverage for the retest as not medically necessary?

I went to an NCEO srminar when I was in-house counsel to a Fortune 50 company that is publicly traded. I found it to be highly informative.

I represent an apprentice fund that was originally organized as a 501(c)(5) labor organization. It decided during 2019 to apply for recognition as a 501(c)(3) because it qualifies as a school. In preparing the Form 1023, there are a lot of questions about relationships and the instructions to the 1023 do not address how to respond to these types of questions. For example, Part V. line 2a asks if any of the officers, directors, or trustees are related to each other through family or business relationships. It is not clear how far family relationships extend, such as whether in-laws would be included and it is not clear from the list of trustees whether any of them are in-laws to any other trustee or officer or director. As far as business relationship, is a union trustee who is also an officer of the local union in a business relationship with him or herself or with other trustees who are similarly situated? Part V, line 1c asks whether any of the officers, directors or trustees are related to the highest compensated employees or highest compensated independent contractors who are listed in 1b or 1c above. Again they are asking about a family or business relationship. Part V, line 3b introduces a new term. It asks whether each of the officers, directors, trustees, highest compensated employees and highest compensated independent contractors receive compensation through any other organizations related to the organization through common control. I noticed that the IRS Regs at Section 1.414(c)-5 contain regulations for determining whether tax-exempts are under common control. There is not an overlap of employer trustees among any of the funds established by the local union but there is overlap on the union trustee side. In fact, one or two of the trustees of some of the funds are either also trustees of some or all of the other funds as well as officers of the local union. Given that the union local is very small in membership, it is likely that the officers ol the local, who appoint the union-side trustees would appoint themselves as trustees to one or more of their funds. Is this sufficient to give rise to common control? Next, in Part VIII, line 15, another new concept is introduced. There, the question is whether the organization has a close connection with any organizations. What is a close connection? Is it overlapping union trustees of a small local union? Does it mean that two or more funds sometimes, often or seldom work together to accompish the same or similar goals? Since the instructions are silent, is there some guide book toward preparation of a 1023 that explains these concepts in greater detail?

I was drafting a Coronavirus-related distribution application form, which included the certification that the applicant is an eligible individual. The question I have is since the employee has to represent that s/he has been diagnosed with Coronavirus, that a spouse or dependent child has or that s/he has experienced adverse financial consequences, the first two trad awfully close to HIPAA protected health information. Fortunately, this client has a TPA that will be administering this provision (as well as other facets of the plan). The question that I have is does the possible application of the first two grounds of qualifying for a coronavirus-related distribution subject the plan to all the HIPAA privacy requirements? I would like to hear your thoughts on this.

I looked at the DOL FAQs regarding the Coronavirus and Employers obligated to contribute to a multiemployer welfare fund. I note that the FAQs, especially Q&As 35 - 37 permit the payment of Emergency Family and Medical Leave benefits and Emergency Paid Sick Leave benefits to be provided "by other means, provided they are consistent with your bargaining obligations and collective bargaining agreement." I can foresee that most funds would want to negotiate the bargaining agreement so that they provide the expanded paid leave benefits from the fund and that the existing paid leave provisions may not be sufficiently broad to apply to these expanded paid leave rights. Assuming that is satisfied, would the employer be precluded from providing such paid leave benefits from its own funds and applying for and retaining the IRS payroll tax credits? Would that be consistent with the employer's bargaining obligations and the collective bargaining agreement? Or would there be an obligation? If it would, would the employer be obligated to either have the fund apply for and retain the tax credits or would the employer be obligated to pay the credits obtained over to the funds?

Granted. Perhaps that is why those with weak stomachs should not watch sausage manufacturing nor the path of proposed lehislation through Congress.

Thank you, Peter! Now I see that there is a dispute over the unemployment provisionsl

Thank you all, especially ratherbereading for getting the actual legislative text and ratherbegolfing for providing the summary.

Does anyone have access to legislative language on the final stimulus package? If you do, could you please send a link to it? Thank you.

I agree with nearly all of the foregoing. However, at the end of the day, whether such withdrawals are permitted is a plan design decision, over which the employer has the final say. If the employer chooses to change its mind, it simply needs to amend the plan.

Unless someone is coming up on the one-year deadline for taking one, I would hold off on allowing them or processing such distributions until the IRS issues at least preliminary guidance on this. One While I agree that SECURE does not specifically limit such distributions to active employees, you might want to consider the employee's ability to roll the distribution back to the plan after taking such distribution (how long the participant has to make such roll-back is still not clear and it would be worth waiting for more clarity from IRS guidance (although I suspect that this will be limited to the 3-year period after taking the distribution)). Effectively the roll-back provision seems to generally be limited to the qualified plan in which the individual is an active participant. Even if IRS guidance were to allow a roll-back by an inactive participant, most employers would be reluctant to accept rollovers from former employees.

A client has a money purchase plan in which distributions are permitted for the following reasons: normal retirement after 25 years of service, or at age 62 with at least 10 years of service or the later of age 65 and the fifth anniversary of commencing participation in the plan; early retirement at or after age 55 (but before age 62) and completion of at least 10 years of service; deferred retirement after 5 years of service; disability retirement contingent on at least 10 years of service and a Social Security determination of disability. If Social Security denies a benefit award, the trustees shall make a determination of disability in their discretion based on proof of disability through a physician of the employee's choice. The employee has stage 5 kidney cancer. While he could qualify for a trustee discretionary determination of disability, he only recently applied to Social Security and he might not live until after it has made its determination. The only other possiibility is a deferred disability. Could the plan be amended to allow any participant in imminent risk of death to apply for a distribution of his full account balance?

As you already know, Code Section 401(a)(9)(C)(iii) provides that if a participant who is not a 5% owner has his or her required beginning date be the April 1st of the calendar year following the calendar year in which s/he retires, the plan is required to actuarially increase benefits after the employee attained age 70 1/2. When the SECURE Act increased the age for the required beginning date from 70 1/2 to 72, it did not increase the age at which actuarial increases are required to begin to be made. Is this merely an oversight or intentional? Any thoughts about what the IRS or Treasury intended to do in this provision?

A situation has arisen where a plan has determined that a participant had been overpaid in her pension benefit payments. The plan intends to recoup the overpayment by asking the participant to agree to have amounts deducted from prospective pension payments over several months. Is there a specified percentage limit of pension benefit payment that must be applied in determining the maximum amount that may be deducted from the participant's prospective pension payments? If so, what is it and what is the statutory or regulatory citation where such limitation can be found?

A group health plan provides for all of the categories of benefits under essential health benefits. An employee covered under such plan was hospitalized for two days in connection with surgery. He had made a $1,000 copay payment at the time he was admitted to the hospital. The participant also obtained pre-authorization for the hospitalization, as required by the plan. After he was discharged, he found that he was subject to a bill of just under $50,000 for his hospitalization. The plan provides for a $1,800 per day limit on reimbursement of hospital expenses. His plan paid $3,600 ($1, 800 per day) for the two days of his admission and after applying his copayment. Since hospitalization is one of the essential health benefit categories, I am concerned that this is in violation of the ACA prohibition on annual limits. Hospitalization, per the SPD, includes the following: semi-private room and board, use of operating and recovery rooms and equipment; use of intensive care and equipment, laboratory or pathological exams, x-ray exams, drugs and medicines provided by the hospital; blood transfusions and use of transfusion equipment; use of cardiographic equipment and supplies, basal metabolic exams, anesthesia supplies and equipment, oxygen and its administrationi, use of physiotherapeutic equipment and supplies and any additional medically necessary services and supplies customarily provided by the hospital. I am concerned that the $1,800 per day limit violates the prohibition on annual limits. Does anyone agree?

Thank you, your views on your contributions to the demise of money purchase plans aside. While I agree that the 25% of compensation profit-sharing plan deduction limit has made prospective money purchase plans extinct, I am also aware that many employers that had them did not do well in phasing them out. Many actually merged them into their profit-sharing plans, which imposes QJSA/QPSA rules on at least the money purchase portion. That aside, back to my basic question, I was not even thinking of adding any language in the absence of guidance. However, when you said "you will have to add," I beg to differ. In my view, it is an optional provision that a qualified defined contribution plan may add. If it does, however, it is my understanding that the statutory remedial period of the end of the 2022 plan year would not apply. If the employer elects to add it for a given plan year, it would have to be adopted by the end of that plan year.

Although it is intended that Qualified Birth and Adoption Distributions are permitted to be taken from any defined contribution plan (Code Section 72(t)(2)(H)(iv)), is anyone considering adopting one for a money purchase plan? According to Section 72(t)(2)(H)(vi)(IV), a Qualified Birth or Adoption Distribution is treated as meeting the distribution restrictions of specific Code sections (which apply to 401(k) plans, custodial 403(b)s, annuity contract 403(b)s and eligible deferred compensation plans). Does the latter section citation concern anyone who has been asked to consider whether to allow Qualified Birth and Adoption Distributions for a money purchase plan? How about as applied to a profit sharing plan without a 401(k) feature?

Very well put, Peter! I was basically trying to say the same thing in much fewer words (perhaps too few. In response to Larry, I agree that a qualified birth or adoption distribution would have to be specifically added to the plan document (subject to the timing rules referenced above) but I never intended what I said to in any way suggest that this change amended the providsions regarding permissible hardship events. The reference to 401(k)(2)(B)(i) was intended to refer to the listing of permissible 401(k) distribution events.

However, Code Section 72(t)(2)(H)(vi)(IV) provides,"Any qualified birth or adoption shall be treated as meeting the requirements of Sections 401(k)(2)(B)(i)..." The cross-referenced section lists the permissible distribution events under 401(k) plans.

I respectfully disagree that there has been no change to the age 62 for normal retirement age. There is a provision at the very end of Division M that specifically lowers thd age to 59 1/2.

You should sue the plan and the employer to protect your rights under ERISA.

An employer has a number of sites in NJ at which it employs a number of employees. NJ has a temporary disability benefit which is payable for up to the first 26 weeks of short-term disability. An employer can either use the state mandated benefit level and get the administration through the state labor department or purchase insured coverage which provides an equal or better level of benefits than the state mandated benefit with administration provided by the insurance company. Let's say this employer chose solely the state mandated benefit. The maximum weekly benefit for disabilities beginning and ending between January 1, 2020 and June 30, 2020 is $667 per week (the benefit amount is equal to 2/3 of the average weekly wage). For disabilities beginning and ending between July 1, 2020 and December 31, 2020, the maximum weekly benefit is increased to $881. Thus, let's say an employee who earns $1,321.50 per week goes out on short-term disability, effective June 2, 2020. $1,321.50 x 0.667 = $881, limited to the maximum benefit amount. Since the benefit begins in early June of 2020, assuming the employee is disabled for 26 weeks, would he get $667 per week for up to 26 weeks or would the employee get $667 per week up through June 30, 2020 and $881 per week from July 1, 2020 through early December, 2020?

An employer has a number of sites in NJ at which it employs a number of employees. NJ has a temporary disability benefit which is payable for up to the first 26 weeks of short-term disability. An employer can either use the state mandated benefit level and get the administration through the state labor department or purchase insured coverage which provides an equal or better level of benefits than the state mandated benefit. Let's say this employer chose solely the state mandated benefit. The maximum weekly benefit for disabilities beginning and ending between January 1, 2020 and June 30, 2020 is $667 per week (the benefit amount is equal to 2/3 of the average weekly wage. For disabilities beginning and ending between July 1, 2020 and December 31, 2020, the maximum weekly benefit is increased to $881. Thus, let's say an employee who earns $1,321.50 per week goes out on short-term disability, effective June 2, 2020. $1,321.50 x 0.667 = $881. Since the benefit begins in early June of 2020, assuming the employee is disabled for 26 weeks, would he get $667 for up to 26 weeks or would the employee get $667 per week up through June 30, 2020 and $881 per week from July 1, 2020 through early December, 2020?

Thank you, Effen. I guess the question I have is why didn't the IRS flag the issue when it was reviewing the plan for a determination letter?