Steve72

Mbozek: See 29 CFR 2550.407d-6(a)(5). The regulation states that a conversion of an existing plan (which may include the termination of an existing plan) to an ESOP is subject to the fiduciary rules of ERISA and the exclusive benefit rules of the Code.

....Is there an affiliated service groupie?

Mbozek: >>I am not aware of any case that has held that a settlor decsion to amend a plan becomes a fid decison<< I don't know that the answer is as cut and dried as your response indicates. For example, the amendment of a profit-sharing plan into an ESOP is subject to the fiduciary rules. I realize that this is an extreme case, but it illustrates that the line between settlor and fiduciary functions can be blurred when plan investments are involved.

All right, I'll bite. Is OJ then voluntarily assigning his benefits to the credit card company?

I think so, just based on the definition of "welfare plan" in ERISA: Any plan fund or program established or maintained by an employer to provide medical benefits.

I don't see how a TPA could provide "HIPAA administration" with regard to the privacy rules. If the TPA provides all adminiostrative functions, the mandated business associate contract with the plan will govern the manner in which it treats the information. If the employer's personell perform certain administrative functions (e.g., advocacy on behalf of participants), then the employer will need to provide training and appropriately adjust its procedures. I suppose a well-informed TPA could provide education and training to employer personell, but the employer will need to ensure its own compliance. If the TPA will be acting as a clearinghouse for purposes of compliance with the transaction standards, then the service will be to "translate" the plan's covered transactions into the required format.

Splitting hairs, but 2002-47 doesn't say to distribute the excess deferrals immediately. Since the Reg gives guidance on the date of distribution, and the Rev.Proc. does not, I would go with the Reg. i.e., report the excess deferral as taxable in the year contributed, and again when distributed upon the occurrence of a distributable event.

I agree with Kirk. The "Defense of Marriage Act" made clear that, for Federal purposes, domestic partners would not be extended the same rights as spouses.

Linda is absolutely right, but plan sponsors should keep in mind that this TPA will not, itself be a covered entity. The statutory obligation is still the plan's. The plan may meet this obligation by ensuring that the TPA utilizes the proper code sets. It's a little late now, but any plan (other than a small health plan) that received a notice from a TPA that stated that the TPA will not be compliant by the deadline (2 days ago) should have filed its own extension, or had one filed for them.

Jeanine is absolutely right. However, it is possible your plan is a "small health plan" that has a on year extended deadline for compliance with both the privacy and transaction standards rules. For a self-insured plan, small health plans are generally those with less than $5,000,000 paid for health claims in the previous year.

My firm has provided advice on the legal requirements and ramifications, however, as far as the actual technical changes that need to be made, we've deferred to the client's IT department. The real legwork is a tech issue, not a legal one.

"Whereas a business associate would not file for an extension, they would fall under the health plan's )or other covered entities) extension complaince plan???" Sort of. A business associate is never (unless itself a covered entity; e.g., a clearinghouse) required to file for an extension or comply with the transaction standards. Rather, the covered entity must file a plan or utilize compliant third parties to conduct the transactions.

A business associate is a person or entity who performs services for the benefit of a covered entity involving the transfer of PHI. The PRIVACY regulations require that the covered entity enter into a contract with this entity. A trading partner, on the other hand, is an entity with whom a covered entity engages in one of the HIPAA transactions in an electronic format. The TRANSACTIONS STANDARDS regulations govern this relationship. It is possible for one relationship to be both a business associate and trading partner relationship.

not exactly comprehensive, but how about this from the IRS's website? http://www.irs.gov/newsroom/display/0,,i1%...3D78656,00.html

The revised HIPAA regs specifically exclude employment records held by an employer in the role of employer from PHI. The HIPAA definitions of "health plan" and "group health plan" both describe plans which pay for medical benefits. As I understand it, the CA law requires salary replacement. Therefore, regardless of whether medical information is provided to the employer, or the salary replacement "plan", there should be no HIPAA coverage. One HIPAA concern that may arise is verification. If the employer wants to verify the illness directly from the employee's provider, the employer will need to convince the provider to disclose the information. An authorization executed by the employee should be sufficient for this purpose.

I'm not sure what you mean by "disease management", however, it is important to remember that consent and authorization are entirely different concepts. It is possible to condition enrollment on the execution of an authorization form, however, the authorization still must be given in accordance with the regulations. A signature on an enrollment form will almost assuredly be insufficient.

A health plan MAY ask for consent, but is not required to do so. An authorization, however, must be obtained if the plan intends to use protected health information for something other than treatment, payment or health care operations. You should review your plan and the flow of data to determine if an authorization will be necessary. Note that a signature on an enrollment form will be insufficient to meet the requirements of either a consent or an authorization.

DFVCP is your best bet, IMHO. I do not believe the DOL will grant a reasonable cause waiver.

My thought is that it's a non-qualified plan designed to mirror a 401(k). Bbaugh, can you describe the plan?

Effectively, yes. The employer and the Plan are separate entities for HIPAA purposes, however, the employer is almost certainly the entity with the authority and ultimate responsibility to engage in the activities necessary for HIPAA compliance (including the ones you've mentioned).

basically you've got three things to worry about: 1) Transaction standards: You can file for an automatic one-year extension for compliance (until October, 2003). In my experience, most covered entities are filing for the extension. 2) Amendments to the plan: HIPAA requires certain amendments be made to the plan document. The regulations are fairly specific in the language required. 3) Compliance with the amendments: Ah, there's the rub. You need to assess the data flow in your plan to assure that no violations of HIPAA or the mandated amendments occur. This is the hardest part of HIPAA compliance.

You said a mouthful. What kind of help are you looking for?

Maybe, under limited circumstances. Check out DOL Opinion Letter 2000-10A.

California recently enacted a law that would make such use of the SSN illegal. ERISA pre-emption is, of course, an issue. Other states (including PA) and Congress have similar bills pending, with varying liklihoods of eventual passage. Not much of an answer to your question, but I thought I'd pass it on.

I'm not sure what you mean by a "form", but there is the model notice to participants of ERISA rights. It can be found at DOL regs. 2520.104b-5.