GBurns

So that politicians can have talking points.

Don Cases do not suggest violations. Cases decide if alleged violations occurred. The fact that cases alleging that violations exist is by itself cause for concern for many people. It is up to each person to see if any cases fit their particular facts and circumstances. But, it should not matter if there are no cases as yet, it should only matter that there is compliance with applicable law so as to avoid a lawsuit.

An HRA cannot have non-employer contributions, So how is the COBRA participant going to be able to contribute ?

The possible hypos and lack of details brings us right back to the first sentence of my initial post: "This is an issue for which a good experienced lawyer should be used."

The technique from 1961 to which you refer does not allow for pre-tax reimbursement. See Rev Ruling 61-146. Non-taxable reimbursement but not pre-tax reimbursement. As for HIPAA, ERISA and COBRA etc concerns, a Google search will bring yoou many cases regarding individual policies.

I do not see enough details to make such assumptions. I do not even know if A was really still eligible to be a beneficiary for a pension plan. It could be that the participant divorced A then married B, hence the need for a beneficiary change. It could be that B is also the executor ? The heirs could be the minor children of B and participant. The money could be meaningful to the beneficiary and/or heirs. Any of the above answers questions regarding why and for what benefit. We do not know if the estate has been closed. We do not know how long ago the benefit was paid. As for the PA deciding to defend, that should depend on the facts and circumstance particular to this case, viewed in light of any case law that might be found relevant, and not on our gut feeling.

What is a Title I 401(k) ?

Then a party with standing could be the executor of the participant's estate. What then if B gets the executor to object ? If the executor does have standing to bring an action, Is it worthwhile or reasonable for the payor to defend or rely on the actions of HR ?

This is an issue for which a good experienced lawyer should be used. I cannot cite the cases, but my memory tells me that i have heard of a few cases where the employee prevailed. But that depends on the facts and circumstances etc. I recall that they hinged on what the employee asked for and the usual level of assistance provided. Think about it. If the employer aggressively promotes benefits counseling etc as one of its reasons why they should be or are the employer of choice in the area, and the employee aks for all forms etc needed to satisfy the stated issue, then is given a batch of forms with the assurance that those are all that HR needs from him/her. Those forms are duly completed by the employee and accepted by HR as being satisfactory. Should the employee be able to rely on that representation made by HR ? Does the employee have any means or way to question the validity of the assurances given by HR ? Is HR holdable to any standard of competence ? I am not sure what area of the practice of law covers this issue, but another poster should know.

S. Is that a flip-flop or just a change in posture ?

So to answer the question of the OP: Who is the employer ? is the question to ask.

Having access to assets and I assume you mean investment account statements have nothing to do with accounting for and reconciling employee contribution accounts. I wonder why a client would have been expecting to get such information. Could it be that those were among the items that they thought they were paying for or were told would be provided ? The answer probably lies in the contract. Which is why I hope someone looks at an actual services contract and lets us know what is there.

If the hiring is done in the capacity of Administrator, then the hirer is the Plan Administrator NOT the ER. The Administrator would then be the employer with the employee on its payroll and employer matching FICA would be an automatic by-product of that payroll. The employee would be subject to a W-2 from the Administrator, as employer. If this was the case the OP's questions would be pointless.

The OP did not say that it was the Plan that would be having its own employee. The OP clearly stated that the local government was the employer and wanted the Plan to pay the employer matching FICA for that employee.

Kimberly S You admit that a bundled service provider would have noticed and informed the employer. You also stated that an unbundled service provider would not even know that a loan was taken out. This puzzles me. The nature of double entry bookkeeping dictates that you must know the source and purpose of entries. How else would the system know to differentiate between a loan repayment, an elected contributon, a QNEC etc.. The oversight required is mainly to look at the totals of the columns which must be done anyhow when crossfooting to balance a report. I bet that the services contract states that such oversight was supposed to be done. I do not have a contract available and hope that someone will actually look at a contract a let us know what is said.

Some contractors, yes, Dr's and Medicaid providers, probably not. The State of Florida and a few of our large counties use what is supposed to be a standard 457 that is also used by many other entities across the US. Eligibility is limited to persons including those under contract "and who provide a service for the State of Florida for which compensation or statutory fees are paid by the state may participate in the Plan". The problems with your scenario start with the definition of "persons". In my experience Medicare providers are coprorate entities of various sorts and are not individuals. My opinion is that "persons" means individuals. Most Drs operate as a business entity. Then there is the issue of to whom is the compensation paid ?

S. The TPAs that you seem to be seeing are, IMHO, shortchanging the PS. The employer has no way to generate the loan amortization schedule, no way to monitor it and no way to reconcile it. Such duties fall on whomever does the administrative functions, namely, the TPA. If I were this employer, my first stop would be to check the contract to see what this TPA should have been doing. Yes, there is some employee blame, but employees are simple people who are given limited, information and limited knowledge about the operation of the Plan. It is the TPA etc who hold themselves out as experts and the solution to the problems of plan sponsorship, and who, for a good fee, agree to provide professional services, par excellence. Let them live up to the hype.

I find this quite analogous to wanting the health plan to pay the employees whose handle the day to day aspects of the operation of that aspect of the employee benefits plan. You would not do it there, so why even consider it in this case. If you could, the Plan would have to be the common law employer (which it could not) and pay the employee as the employer in order to pay FICA. Reimbursing the employer for expenses in entirely different from paying a plan employee.

Isn't it the TPA who keeps the records and therefore the loan account details, not the employer ? If so, then it is the TPA who would see that loans were not being reduced. Come to think of it, I do not see how an employer would or should be reconciling loan accounts or monitoring loan amortization schedules. The employer screwed up and the TPA failed to monitor. As for the bank analogy, What could the cop the cop possibly bring as a criminal charge ?

In this case, the COBRA continued arrangement can only consist of the 102% medical insurance premium and an FSA (and this only if the participant had the FSA during employment). You cannot create an HRA or a look alike for an ex-employee to contribute to. Additionally, even if you could, it would make no sense to contribute after tax, it would be more sensible to pay the provider directly as needed.

I did not think that an employee could contribute to an HRA.

You thought that was Betty Boop ?

Teach "them" who, a lesson ? Isn't failure to collect loan repayments as per plan loan terms a failure to operate according to the plan ? Isn't failure to enable or enforce loan repayment a breach of fiduciary duty ? If any of these are correct, then What is the employer/Plan Sponsor's liability for contributory negligence ? I suggest that you tread lightly and carefully, if you take a position, like Leopurrd seems to be doing, that this is entirely the employee's fault. All you need is 1 employee to complain to open what could be a can of worms and who knows what else exists.

That raises questions. Which Del Monte did he work for ? Did he work at the HQ or in a subsidiary ? If subsidiary, what country was it located in ? Have you verified the country of domicile of this pension plan? I have seen quite a few people who were either in thw wrong plan or who were in a plan diffeent from the one that they said that they were in. This is a fairly popular problem with agricultural multi-national firms such as Del Monte, United Fruit, Standard Fruit, Tate & Lyle etc. For example, United Fruit in Jamaica was originally a branch office of the UK entity. The Uk entity got taken over by the US entity. For a while the Jamaica office "oversaw" Costa Rica and the remnants of a Panama operation. Some employees were under a UK plan, some fell under a Jamaican plan and some from Jamaica and Panama fell under the plan from the US office in Boston. When major operations were closed down in Jamaica around 1970, some participants were transferred into another Jamaica plan and some, mostly senior administrative were transferred into a US plan. To confuse pensioners further, monthly pension disbursements were originated in the US then deposited to a local trustee for subsequent disbursement. Asking any pensioner what plan they belonged to got the same answer, United Fruit. Their opinion as to country of domicile of the pension plan depended on length of employment. The older ones thought UK (after all Jamaica is a British Commonwealth country) and the newer or more exposed thought US because that is where the internal auditors came from and where daily reports etc were sent. So over many years I have learned that most people will give a wrong answer about many things even those which are of primary importance to them. I do not know if any of this will mean much, but I hope that it prompts you to make sure that you have correct details. Even if it is only to make sure you have the right Del Monte and country. It might make a difference.

Continuation of coverage is an insurance policy clause and thus the notice of conversion rights first comes from the insurance company. The notice, if any, from the plan or employer is separate from the obligations of the insurer. So, I could see where ERISA governs the actions of the employee benefit plan, but does not pre-empt the contract provisions of the insurance policy nor the required actions of the insurer as dictated by state insurance law.