GBurns

Yes. In fact almost every FSA and DCAP that I see has the employees paying the admin fee on a pre-tax basis. I do not remember seeing fees on POP even in small plans. However, your post raises questions. If you are offering your client a cafeteria Plan and have to ask this question, it appears that your knowledge of, and experience with, Cafeteria Plans is very limted. Why would you have to even ask this question and what have you been doing about this admin fee with your other clients?

For what purpose and Why? Is this a rollover, a transfer or what? Why can't the same thing be accomplished within the current investment vehicles in the 401(k)?

You need much more from the broker especially regarding Whose PW rules you will have to observe. What you are being asked to do is referred to as "Hour Banking" and involves more than what you have posted.

There are differences in the administration of fringe benefits under the different prevailing wage rules. A municipality might have different rules from a State. A state might be different from Federal. Davis-Bacon is different from SCA. What prevailing wage rules apply?

I use Microsoft Word and Adobe Acrobat, but I am sure this is not what you meant. Plan Documents, SPD, Adoption Agreement etc etc are legal documents. Legal documents should come from lawyers although others might do the draft or sample. There are many sources for cafeteria plan documents that are customizeable so there is no need to do-it-yourself and you should not anyhow. Why are you doing it yourself? What has your TPA offered? What has any of the suppliers of the underlying products offered?

How do you do or How do you sponsor a plan under 105(h)? Section 105(h)(2)(B) deals with discrimination in plans, there are no benefits under this section. COB is intended to "total" the benefits received under 1 or more plans so as to try and prevent reimbursements from exceeding costs. Excess reimbursements might constitute taxable income. The benefits under each separate plan is subject to the terms and conditions etc of the plan providing that benefit. That plan must meet the discrimination requirements of section 105(h). COB provides no benefits and has no discrimination testing etc under 105(h).

What did the counselor mean by "inappropriate"?

In a similar situation earlier this year it turned out, as is usually the case, that the bank employee had neither support nor basis for having made a similar statement. I also recently had to forward the same OCC link to a branch of a very large bank in VA. Again the VP had no explanation of why she had made similar statements to her client. It seems that bank and other employees just shoot from the hip and the clients accept whatever is said without question. Most plan sponsors that I have come across would think that forfeiting other than minor amounts is unethical. They are not in the business of taking that which others worked hard for and would prefer to make reasonable efforts to find missing plan participants especially if the costs can be retrieved from the participant in any way. As for mbozek's idea, the problem that I have with it, other than it stinks, is what happens if after paying expenses there is still an amount left and the remaining employees feel that it would be unethical to accept any of this "spoils"? I think that it would be infinitely better to use a locating service and have the located participants pay the fee, if possible. Or after locating as many as possible, forfeit those not founded and use that to pay the locating service.

Theresa, While it would be good that some of your more personal things be left to "off Forum" correspondence, please do not forget to make further contributions to this thread. banality, The reason why you have not been criticized, is probably because, in their hearts, most people agree with what is being discussed. Notice that as we continue the discussion, more and more people are "coming out". Things like these need to be exposed and too many people are not sure whether or not what happened to them also happens to others and Why etc. You have not opened a can of worms you have instead opened minds and consciences. I thank you for having started this thread. It is not off topic (unless the Moderator deems it so) and probably deserves it own Topic since many of the issues and problems that are discussed otherwise really have their roots in these issues that we are discussing in this thread. In many cases it is this "attitude" towards work and bosses that creates the problems in the other areas that then have to be solved. By the way look at the number of "Views". I invite these viewers to join in.

Regardless of what the IRS might or might not say, there remains what the PD says. At this time, there is no divorce proceeding, therefore she is still married although separated. That there would be listing of property and disagreements over splitting of property bfeore the start of divorce proceedings is questionable. I do not remember ever seing a PD that made a provision for separations, whether legal or not. So if the PD makes no mention of separation, you are left with what the PD says regarding married participants whose spouses are known. The PD rules until there is notice of the formal proceedings, although I have heard of a Notice of Intent. As suggested a lawyer should be in order.

Since that is your understanding of HIPAA, it just increases the need for your to seek a lawyer. Under HIPAA while an indvidual might "own" their information, it also allows others to use it for treatment etc once it is given to them Once given for treatment HIPAA does not say when and how it is used as treatment or as part of the treatment. What you seem to be thinking is similar to someone with Diabetes not wanting the same treating Dr to use that info to treat newly developed renal failure, because that info came from another course of treatment. While you will say that both of the above related to the same individual, I will point out that the Dr then has to give your info to other people to use. The Nurse, the lab techs, the diabetes supply co, the pharmacist, the dialysis center etc etc. And there is usually a need to counsel family members so that they can render emergency assistance. In order for all this to be done you initially signed a General Release that covered the use and release of your info. Unless you were probably the only person in this world who would try to keep all this a secret from your family including your wife. In signing up for this EAP treatment I am sure that you signed a similar release. Even if you did not you agreed verbally to BOTH individual and group sessions. It is then the treating practitioners sole discretion as to what course of treatment is necessary. Do you tell your medical practitioner how to practice medicine, how to diagnose or what the treatment protocl should be? Of course you do not. So why in heavens name do you think that you can or should be the decider of what this EAP practitioner should do in the course of treatment? He found it necessary to use an example fron your individual session as an illustration of something that arose in the group session, that is all. In retrospect he thinks that he might have been able to do it otherwise. That is all. I doubt that you can demonstrate any harm so no foul. The fact that you were apparently trying to keep secrets from your wife and are now embarassed that he let your secret out, is immaterial. Next time do not let anyone know your secrets. Better yet, next time do not try to bully people who know your secrets. If you had not created a bad scenario this would not have happened. You caused it, now you live with it. Let it be. You are curious as to how you can have him prosecuted. Here is the answer... Go pay a lawyer and if he does not want to tell you what you want to hear just create a scene..like you did in the group session. Simple.

Make sure the lawyer checks the D&O or Fiduciary Liability coverage of all the Trustees and the E&O etc of the Auditors and accountants etc. A number of years and they are just finding out? What happened to the Plan auditors and accountants etc? Didn't the Plan have to file Form 5500 and do tax returns, it should have showed up?

We do not need any more laws to protect employees etc. What we really need is people to have some guts and stand up for what is right and to support those who do the right thing. I learned long ago that whenever I stand up for truth, justice or the right thing, I am standing alone, ALL alone. I have been burned badly many times because I tend to forget the past lessons. I now try not to get involved and luckily my line of work tends to allow this, however, I still get sued at least every other year by someone trying to shut me up. I have not lost any but it costs money sometimes. Even on this Board it happens. A moderator once told me that I should stop trying to police the Board and the Internet, when all that I was trying to do was to point out the inaccuracies in postings by a poster who used to have the habit of giving references and cites, to support his arguments, that were either non-existent, misleading or incorrect. I got the flak instead from fellow posters who were the ones getting the bad cites etc. Can you imagine what would have happened if this was at a place of employment and jobs were at stake? I would have been physically drawn and quartered by fellow employees wanting to make sure that it was known that they were not my supporters. Until people stand up en masse for each other, I support the need for labor unions and encourage all to do the same. By the way, I am wondering if this Thread will be a new record for length, if not in number of posts then lines of postings.

Yes, but remember it is the individual himself/herself who is submitting the EOB and therefore knowingly and willingly is making the disclosure of their own PHI (if it is).

I would have thought that in a joint session all items and info applicable to both individuals are open for discussion. Anything from your individual session is your info and there open for the joint session. It is inconceivable that you agreed to a joint session and expected to not have your info, from wherever derived, open for discussion. What did you think was going to be used in a joint session? The other person's info only? In any case an aplogy for inappropriateness means nothing. Inappropriate might have meant wrong time, causing embarassment etc, it does not necessarily mean illegal or unlawful or impermissable. I doubt that there could be a HIPAA violation, and even if there was , I cannot see the DoL pursuing this. It is of no consequence and even if they do and find the counselor guilty there should only be a minimal penalty especially if the other person provides conflicting or exculpatory support. The purpose of the regulations is not to settle grudges or to spite. But if you really want to find out if it is a violation, find a lawyer and pay him to tell you.

Are you saying that this issue is an IRS issue, not a California only issue? Well, wa do ya know and who woulda thunk?

I am happy for you and hope that it works out very well. It could be a case of "All good things come to he/she who waits". Remember to guard the "chip" carefully, you really do not want anyone else to get it. And keep an eye on attitude in case he starts making faces behind your back.

Why the privacy concern? What problems do you think that it will cause? The participation form should also include an authorization for release of the PHI, assuming that you do feel that the EOB is PHI. Are you concerned that this small plan will need a Privacy Officer etc?

First, I would think that a mexican corp is subject to mexican corporation law not that of any state in the US. Second, you posted "partner in a corporation". Did you mean shareholder as in being 1 of 2 shareholders or did you mean partner as in partnership? I do not know about Mexico but I think that all states in the US make a big difference between the two forms of entity. So does the IRS. Third, What does investment and golden parachute have to do with demanding money? Last, What do you mean demand? The selling of shares is not a demand to a company even if he is trying to get the comapny to buy his shares. Truthfully, you have me confused as to what the issues are.

I was not aware that it was yet in effect. Even if it came into effect, it is enough of a change in cost to qualify. You might want to run through the questions at www. changeofstatus.com See what happens when employees and union allow sloppy and questionable bidding and contract issuing.

I do not think that an FSA makes any difference.

This is not an answer to your question, but your post raises my curiousity. What makes this an ERISA plan? Whatever it is, does that not make the employer a fiduciary anyhow? Who does the Plan Document say are the fiduciaries and Plan Administrator? Like most PDs this PD probably states that it is the employer who is the Plan Adminstrator and a fiduciary. Quite often in 403(b) plans there is a Hold Harmless Agreement which some employer feel will relieve them of the fiduciary liability, but that is questionable.

It could be that the IRS sees no need for a ruling as per their general refusal to rule on obvious issues. They might have thought that no one would argue that there could be a question as to whether or not there is spousal attribution in a CP state. Corporations and business entities are creatures of state law, if the state allows the entity, the IRS accepts it. The ownership of corporate entities etc is decided by state law. Why would anyone question the ownership attributed to a spouse in a CP state? The IRS accepts whatever it is that the state allows.

Not so old might be at www.unclefed.com whereas older ones will have to come from 1 of the subscription services such as www.bna.com or www.taxanalysts.com Of course there is always your local library or law library which will have LEXIS access and hard copies. Maybe someone else knows of another source? If you post the actual PLR numbers a reader might just happen to have them and might just be willing to share.

Very rarely does anything ever happen to these "wrongdoers". The "good guys" are usually too chicken and the clients very often will not provide any evidence or verfication. The clients are afraid that it might be cutting off their nose to spite their face. After all, it was the client who agreed to and allowed the wrongdoing, then benefited from it. It is also the client whose tax return has the tax fraud etc and who owes the back taxes and penalties. Watch what happens when this prospective client finds out how much he owes etc. He might just stop taking your calls. The only thing that you can do is to provide the documentation to the CID of the IRS, the DoL and any other regulators and insurers (WC and Gen Liability if this affected the payroll). If you do not have his permission, after you have done your best for him, you can always do it anonymously. If you press them, they will investigate all the clients for similar issues. It helps if there is documentation on at least 1 other client. The client letters that you have will help. Sleazy but what else is there to do?