GBurns

While self insured health plans are not usually state regulated but DOL regulated, most states require that TPAs be registered or licensed. What are your state requirements for TPAs? There is also the issue of Liability insurance since ERISA and self insured plans administration is not usually covered under your E&O. Because of the cost of this insurance and the state requirements, I would suggest that you help them select a TPA instead. By the way, how do you propose to do this claims adjudication? By hand? Or will you have to buy software? Who will be trained to use it? What will you pay them? You might find that doing it will not be profitable. How about HIPAA privacy issues? Are you equipped?

Where or what is the compensation that is being deferred? When is it being deferred until?

If the basis for the wives becoming plan participants is because they are employees, I am curious as to whether these wives will qualify as employees. Where have they ever been reported as being employees, 941, UC, WC etc? How are the hours worked, every week or some other period, or ad hoc? What was the remuneration for the 500 hours? Does it meet FLSA minimum wage requirements for each pay period? How ill the $14,000 be paid? Lump sum or over a few pay periods? Will such an hourly rate or lump sum be acceptable to the IRS as reasonable compensation? How will they account for this huge increase in rate of compensation when there is no change in duties? Every time I see or hear of a scheme like this getting audited, it fails.

That a employment agreement includes a non-compete agreement does not change anything. A large number, possibly the majority, of executive contracts do. To regard an employment contract that has a tie between the severance package and the NCA terms as being "NQDC" would create havoc by causing vasts numbers to now be under 409A. Severance pay is a continuation of compensation for services. The NCA is not. The payment of the severance pay is not being deferred. Therefore I do not see any "deferred compensation". For there to be "deferred compensation" there would have to be payment at some future date. If the NCA terms are violated the "severance pay" is not deferred it is forfieted and is not deferred to any future date. Not competing while employed is a condition of employment and the executive will be getting compensation for services. There is nothing that is being deferred. Not competing for 12 months following termination is a NCA, but there is no payment for not competing, that I see. Even if there was it is bieng paid on an ongoing basis, there is nothing being deferred to any future date.

Whereas I would say No, it is not a deferred compensation plan of any sort. Compensation with regard to DC plans is compensation for services of an employee or in a few cases a director to an employer. The payment in this case will not be for services rendered as an employee nor to an employer. The employee/employer relationship would have long ago ended, anyhow.

I would not have thought that such an arrangement would exist, mainly because of the potential for what has now happened. But, I guess the real problem is what can be done now. Are administrators required to be licensed by the State or otherwise? If so, maybe a threat to report would help. Is this information regarded as being protected by any privacy laws? A similar threat could be made. Since the IRS wants to audit, maybe the plan might make you whole then engage your services for the audit? Have you had any contact with the plan?

papogi Is enrollment in the health insurance limited in the same manner? If not, then how can you allow the employee share of the insurance premium (if there is any) but not the FSA?

It really is not that the same rules apply, it is that a POP plan is a cafeteria plan. There is no difference between the cafeteria plan referenced by EBIA and a POP. POP is premium only as opposed to additional choices such as FSA etc. A car with fabric seats and stick shift is not any less of a car than one with leather seats, automatic, power steering etc etc. If an adminstrator thinks that a POP is not a section 125 cafeteria plan, I shudder to think of what they might be doing with their plans. As in all cases when someone tells you something like that let them give you cites to support their position. My cites are the IRC, Treas Regs, Proposed Treas Regs, the EBIA Manual and a simple Google search on "POP cafeteria plan".

Receiving in error does not change the fact that it was received. Returning or shredding does not change the fact that it was received. After you return or shred the original, What happens with what remains in the minds of those who saw the info? What happens to copies made, whether known or not? What happens if you return to an unauthorized person, considering that something sent to XYZ Company will not be delivered to the company itself but to an individual at that company?

A provider who receives PHI on a non patient would be prudent to protect this info in the same manner as if protected by HIPAA even if it turns out that it is not covered by HIPAA. There are not only many other privacy laws such as the Public Health laws but privacy rights under state laws. For example when an individual contracts any of the major communicatable diseases, such as an STD, under public health laws a disclosure of other contacted individuals is made. What do you think the consequences would be if any provider who is treating any of the disclosed individuals releases info on the others who are not patients? The same applies when a provider collects Family history in order to assisit in diagnosing such things as Diabetes, hypertension etc. If family history, as a general issue is not protected, what do you think would be the result? A health plan, whenther as employer or provider is no different. The fact that an employer finds out, as an employer, that an employee has contracted a disease does not allow that employer to release or use the information about any others who might be involved in the transmitting of that disease to their employee. In fact, an employer getting employee information in the manner that Steve72 describes is not free to use the information as he pleases, there are still restrictions on its use. Even if HIPAA did not exist, such information is protected otherwise.

You state that you "would like to resign as administrator on both plans " but from what you have posted I cannot see where you are the administrator of the plans. You might be a service provider of some sort but I wonder to whom? You do not mention having any agreement for services with either the Plan Sponsor, the Trustees or the employer, you only mention the financial planner. What makes him/her authorized to make you the administrator or anything? I cannot remember ever seeing the Plan Administrator being selected and engaged by the sales rep or advisor. As a side issue, were you receiving any protected private financial information? If yes, Who and What authorized it etc? It seems that you might have been doing work that no responsible party authorized.

Harry O I had let it go way back on October 16th. Put it on someone else.

I think that more clarification is needed. Very often the term "leased employee" is used to denote a PEO type arrangement. However, as used in the IRC etc it means something else. What you have described seems to be a temporary staffing arrangement rather than a PEO arrangement. What do you really mean? Your use of the terms "collectively bargained employees" etc rather than calling them unionized employees makes me wonder with whom the bargaining exists? Is there a union? When did the employees vote? When was it ratified? etc are questions that come to mind. Many state Depts of Insurance, the DoL and others have warned that such claims should be verified etc. If they are unionized, then what the CBA says is also important in addition to the eligibility requirements (or exclusions) of the client's plan.

I guess Tom would have covered imputed disparity as part of the Yankees segment. And from his description his histrionics probably did make them hysterical.

While it was of specific interest to me, Joel also thought that it might be of interest to others as well. He could have very easily have emailed it privately, but since he has been in the business of educators pension planning long enough to know that there are many people who have been hurt because of this issue, he decided to use the Forum so that any other interested party could also see, especially those who were not around when all this happened and have not yet found out why the retirement of many educators has not been as planned. Would you have preferred a lengthy dissertation and numerous postings promoting a poster's superior "knowledge", "experience" and "being familiar with self-employed plans" and a criticism of other posters who "want to put in their 2-cents worth" as was done in a few recent threads in which you participated? You have put up with a lot worse in Threads on other Forums, and so I am surprised at your response. If it had been me or 1 of the other cantankerous posters, spouting off, or worse, 1 of the rude ones, I could understand, but it was just an effort to help out a situation.

It is early in the morning for me but I cannot imaging someone finding a way to have fun while presenting coverage and cross testing. You must have a hell of a sense of humor.

I guess that you do not have much in the way of requirements and standards.

But then again...there is a "Delete" and an "Of no Interest" option with all posts to any Forum.

mbozek, I will go and read it, but your post raises a question. Why tell me, GB specifically, to go read it, when there have been other posters who have also quoted or relied on these newsletters etc? Are you suggesting that they should not or have no need to read also and that I am the only person who needs to go read it?

So you are saying that it was just a change in corporate form with acontinuation og the same plan. Was the FEIN number of the entity for IRS reporting of 941 deposits and W2s etc changed?

I always thought that there was a difference between STD, sick days, vacation, PTO etc and that the choice of which one when was up to the employee. I also do not remember seeing a definition of STD (Short Term Disability) that included enough of sickness so as to be a substitute for sick days. I would love to hear what your STD covers and what it says about this "offset".

Yes. This the "issue or lawsuit" to which I was referring. Although I remember an actual filing in court. My archives which should have some old coverage is not very readily available to me, and it could be that I had discarded it since I left the 403(b) type businees years ago. Thank you for the help. Anything further would also be appreciated. An old issue that is related to how TIAA-CREF actually handled this with certain participants has surfaced. In the cases that I saw, mainly in Florida, there deserves to be litigation. The Plan Sponsors were either in collusion or incompetently allowed themselves to be misled because the notices etc to participants were either deceptive or just plainly misleading. What was done was questionably legal but definitely not ethical nor within the spirit of the settlement.

So what do they mean on page 5 of the same document under their own section titled """Haircuts" Penalty Withdrawals ....." where they state that "Code section 409A precludes "haircut" and other penalty withdrawal rights." Precludes means to make impossible. So what do they mean? But notice the wording in their "Grandfather" section. It is applying "haircut" mainly in a context of deferrals while the other sections deal with withdrawals and distributions. Additionally, just below the link to the Davis and Harman comparison is another link to an "an employer action plan" from Groom Law Group a much bigger outfit with great contacts and which also works closely with groups that influenced the legislation and will influence the regulations etc etc. Look at what Groom says about haircuts on page 1 Item 3: http://snipurl.com/6krn Re "ROFLOL. My information is very reliable." Reliable for what? Confusion? What? There is an old saying .. He who laughs last laughs best. Why not just wait for IRS clarification?

Something that is vested is something that usually is fixed agreed upon and cannot be changed. If $x is vested the $x is what is payable and paid. Are "haircut provisions" earned or are theya promise to pay maybe? Under haircut provisions $x(+-%???) is what is/might be/just maybe due. Can such a variable conditional item be regarded as being vested? Or is it only a promise to pay some amount some day? I do not see that this would be a vested item.

Maybe they just do not want to be that specific? Their universe is broader than jusyt your plan and they could see such an answer as being too broad. They could also take the position that the IRS takes on some issues and have a "No Ruling" position, which would be the same. You would then have to continue without the specifcity as you are currenlty now doing anyhow. Does it really matter whether they use "retroactive" or not? What is the downside? If you had been operating and filing in a manner that meets the DoL requirements up to this time, what purpose would retroactivity serve? You cannot go back and unfile, so it can only be a going forward issue. And going forward you would have their "church plan" exemption anyhow. Did I miss something? Unless it is that you think that there is a lawsuit lurking out there to which ERISA might be an issue. In that case even if you had DoL retroactivity, its applicability would still have to be adjudicated, because of what was conveyed etc to the employees at the time of the alleged violation.