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Our company has made a plan restatement of our Top Hat Plan. After this restatement, do we need to file a statement of this change with the DOL? i.e. using this online filing tool? https://www.askebsa.dol.gov/tophatplansearch

Wondering if others have dealt with this idea or can anticipate any hurdles -- Say a company had a standard dependent care FSA program, no pre-tax employer contributions to the employee accounts. Company now wants to establish a fund for employer contributions but subject to taxes, for participating DC FSA employees but not directly to their DC FSA accounts (so to avoid any pre-tax issues plus to avoid being considered towards the employees' $5k/$2.5k contributions limit). Fund would be fixed per year at $xx total (decided at the beginning of the year or end of prior year), and then allocated between participants based on the # of participants in the prior plan year (as if it's a pool to be divvied up based on prior year participation). Eligible participants include anyone who participated in the prior plan year and is still employed at the beginning of the applicable year. Anyone seen this before, or something similar? So long as it's post-tax and not directly to their accounts, any hurdles?

I am at a loss on this, in-network provider successfully sued patient for balance bill in state court despite denial of benifits with non-liabilty and both appeals being adminstratively denied for improper billing with non-liabilty of enrolle. Lawsuit was for breach of oral contract but the written ERISA contract had a hold harmless, and included language to prevent any form of out of network contract unless the provider informed the patient in writing services would not be covered under the plan (they did not). The judge ruled as if patient had insurance and would not correct to state it was Self-Funded ERISA, would this be a cause?

My mom had a Pension. A QJSA. She divorced in 2006 and retired in 2011. In her divorce they each retained their own retirement acts. Free and clear from any claims of one another. Through her employer I was her beneficiary on her life ,ad&d, 401k while she was working. She has passed and the company said the beneficiary had been notified without another word spoken to me. Her attorney said that state law (Ohio) predeceases the ex in retirement plans with decree which she thought all would go to me (pension and other acts) I am her only child. Now, her employer said I was not the beneficiary although I showed them paperwork that I was, which was done at her retirement in 2011. EVEN THOUGH THEY NOW SAY, after 5 months of back and forth, that I’m not the beneficiary they want me to send in her death certificate? It does not make any sense. Not only am I dealing with the death of my best friend but her employer is making me feel like crap to be honest. It’s all so very sad and don’t know what to do at this point. Do I just give up? Do I let it go? My mom did not want him to have anything because he had his own and it was always her intentions for me to have her acts. I was also her power of attorney and we had bank acts together. I have taken a full notebook of notes with the conversations I have had with her benefits center and Human Resources. Any insight would be appreciated. Thank you so much! Quinan

Can a new collective bargaining agreement reduce benefits that have already been accrued by retired employees? For instance if a new CBA states that the monthly pension payouts will be reduced offset by the amount of a Social Security check if the participant is drawing social security, can that be done legally if the person is vested with accrued credits and currently drawing a benefit that is not subject to a Social Security offset? I was under the impression that both were considered earned income after the required years of service. Can a CBA legally make this type of change to accrued benefits or would they be required to grandfather in the agreed pay at the time the CBA and Plan Document was changed? If not what CBA/Plan Document would cover the current participant's future pay? Does it matter if the participant is collecting disability or retirement?.

Hello, Our group plan carrier messed up and failed to enroll an employee back in April when we submitted her application. However, because we didn't know that until September, she has been enrolled on our group HRA since April. So, we were/are out of compliance for the five months she was not covered by our group health plan. The carrier has since enrolled her onto our health plan as of 9/1, but our broker doesn't think they will consent to back-enrolling to April. If they don't, what do you think we should do? Fortunately, she didn't have any medical claims until September, but she did use her HRA for some dental/vision charges prior to September. We would like to make the employee whole, since it wasn't her fault, and ideally get back into compliance. Should we: Report her HRA employer contributions as taxable for those five months she was not covered and give her a bonus to cover the taxes; Reset her HRA active status date to 9/1 and give her a (taxable) bonus to cover the HRA contributions for those five months; Not even bother asking the carrier to back-enroll her to April and just ignore the fact she was not covered by our group plan for five months (what are the risks here?); Or something else? Of course, if the carrier won't back-enroll her to April, we will also reimburse her premium payroll deductions. Thanks for any advice!

Hello. I'm a lawyer in South Florida desperately trying to obtain an approval for medical treatment needed by my son, and Anthem is refusing to authorize for reimbursment. Anthem, has indidcated that the insurance provided by my wife's employer is pursuant to a self funded ERISA plan. Anthem denied the initial request for authorization for the treatment recommended by my son's doctor. The treatment which requires hospitalization will cost in excess of $40,000. The denial by Anthem was totally ambiguous. Anthem's denial letter indicated that the proposed treatment was not "medically necessary." I appealed the decision and that was denied. I asked for an external appeal and was told by the State of Virginia Insurance Commissioner, where I sought the external appeal, that self funded ERISA plans have a different kind of "external appeal." The external reviewers are not chosen by the State Insurance office, but rather by Anthem who contracts out these external appeals. Prior to submitting the external appeal file, Anthem asked whether I wanted to supplement the file. I asked several times whether the denial was based on a decisiion that my son was not suffering the medical illness diagnosed by his doctor or whether the denial was based on the recommended treatement (this was never clarified in the inital denial letter). I needed to know this in order to determine what kind of additional records to be submitted in support of our claim; to wit: records suppporting the diagnosis or records supporting the appropriateness of the treatment. I received several responses that continued to cover both basis. I questioned how Anthem could challenge the diagnosis based only on the clinical office notes and lab results submitted by my son's treating physician without Anthem's "deciders" conducting a clinical exam of my son. No response. Anthem's "external review" folks, have recently declined my request that they speak directly with my son's doctor on the teleophone before making a decision. I have no hope that the external reviewers selected by Anthem will reverse the decsion denying benefits. Accordingly, I am going to have to pay for the treatment myself and seek reimsbursment by way of litigation. This is where I need help. Who would be the defendant in a lawsuit seeking reimbursement? Anthem? The self funding employer (Virginia based). Both? Could I file the lawsuit in Florida where I live since I would be the Plaintiff seeking reimbursement? Would it have to be in Federal District Court? If not, Florida, would I file it in Virginia where the self funding employer is located and could I leave the employer out of the lawsuit (preferable to me since the insurance is through my ex-wife's employment and wouldn't want to create litigation that would harm her relationship with the employer). If the suit is only against Anthem, could I file and keep the suit in Florida, state court or more likely, Federal Court? I am pretty sure that Anthem is doing this with all children suffering the same ailment as my son. His treating physician says that a number of other insurance companies approve the treatment based upon her diagnosis but she always has denials from Anthem. Apparently, Anthem makes the insured parents jump through the appeals process hoops in the hopes that a lot of parents of kids sick with the same ailment as my son will not have the resources or knowlege to get through the process. Im quite comfortable that in litigation I have experts who will support both the diagnosis and recommended treatement as appropriate. One of them would be the Chief of the Pediatrics & Developmental Neuroscience Branch at the US National Institute of Mental Health Can I bring a class action for declaratory releif to establish that the diagnosis and treatment recommended is appropriate for all similarly situated children who are diagnosed with the same ailment and are fighting for the same treatment and join in any insurer who has been routinely denying reimbursement for the recommended treatement? Any help will be greatly appreciated... Reed

We have a client with a self-funded health plan. Ex-spouse of employee in Nebraska claims he should still be covered for 6 months (until divorce decree is final for purposes of health plan per Nebraska statute). Question: because the plan is self-funded would ERISA preemption apply? Would the answer be different if the plan was insured? Nebraska Statue Below: 42-372.01. Decree; when final. (1) Except for purposes of appeal as prescribed in section 42-372, for purposes of remarriage as prescribed in subsection (2) of this section, and for purposes of continuation of health insurance coverage as prescribed in subsection (3) of this section, a decree dissolving a marriage becomes final and operative thirty days after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered. (2) For purposes of remarriage other than remarriage between the parties, a decree dissolving a marriage becomes final and operative six months after the decree is entered or on the date of death of one of the parties to the dissolution, whichever occurs first. If the decree becomes final and operative upon the date of death of one of the parties to the dissolution, the decree shall be treated as if it became final and operative the date it was entered. (3) For purposes of continuation of health insurance coverage, a decree dissolving a marriage becomes final and operative six months after the decree is entered. (4) A decree dissolving a marriage rendered prior to September 9, 1995, which is not final and operative becomes operative pursuant to the provisions of section 42-372 as such section existed immediately preceding September 9, 1995. Source:Laws 1995, LB 544, § 2; Laws 1997, LB 434, § 1; Laws 2000, LB 921, § 34.

Does anyone know whether federal law has any help for the estate of a murdered spouse, where the murdering spouse was the ERISA plan participant, and community funds were used to contribute to the 401(k)? It does not seem right that federal law would allow a murdering plan participant's benefits to be protected from a state claim by the murder victim/spouse.

Hello, so quick question regarding a late 5500-SF: Recently when going through finances I noticed that I forgot to file my 5500-SF on the efast.dol.gov website in 2015 and 2016. (Well, I didn't "forget" but rather I missed a special link in my payroll, which passes the final electronically-filled form to efast...). I have filed 5500-SFs in years prior, and had planned to continue do so. However I am a one participant plan with assets < $250K, so it is my understanding that it is was technically not necessary to file. The other day out of panic, when I noticed those 2 years weren't filed in efast I submitted them anyway. However I realized afterward there is a substantial penalty for late filing, and these late forms are now visible from within efast... My questions are as follows- 1) Will the fact that I submitted late 5500-SF forms to the efast website trigger an audit? 2) Will I be charged a penalty? And if so, is there a way I can pay any fees in a advance of receiving a bill from the govt? I noticed in the DFVCP penalty calculator it states "Form 5500-EZ filers are not eligible for the DFVC program." which concerns me greatly... I have yet to receive any late filing notice but I fear the clock might be ticking... Any advice would be appreciated!!

Hello, As a final exam I've been allowed to write a 15 page paper on any ERISA topic. The thing is I have no idea what to write about. I do have Lexus Nexus, which should make the process of writing the paper easier, but I have no idea what to write about! Possibly something easy to understand. Best, Hambbino

My question relates to 29 CFR 2510.3-2(b) Severance Pay Plans The Regulations state "the total amount of such payments does not exceed the equivalent of twice the employee's annual compensation during the year immediately preceding the termination of his service." What does the phrase "the equivalent of" mean? Is the DOL referring to the time value of money? Additionally, in referring to the annual compensation, how is that determined? Is the annual compensation the employees previous years salary or is it the salary it would have been if he had continued working? Essentially I'm asking if anyone knows what they mean by "usual rate of compensation". Any thoughts? Thank you!

Greetings, Does anyone have a good contact at the DOL that they could share? I have been looking into the question of when ERISA bonding is required under Section 412 with respect to a TPA that collects premiums from plan sponsor and remits to the carrier (note: TPA does not pay claims). My feeling is that these monies are not "plan funds" that trigger the bonding requirement until they are in the hands of the carrier, and thus the TPA does not need to have an ERISA bond in place. I base this mostly on Section 2580.412-5 "Determining when 'funds or other property" belong to a plan. https://www.law.cornell.edu/cfr/text/29/2580.412-5 Any information, whether it be a contact # or experience relating to the above issue, would be most appreciated. Thank you.

Plan is a self-insured plan that contracts with a Non-traditional Third Party Administrator. The TPA does not collect any premiums or pay out any claims (claims are handled by Care First). Carefirst adjudicates all claims, and debits an account belonging to Plan Sponsor. Role of the TPA is to process enrollment, provide other administrative services(billing, prepare 5500s, PPACA reporting, consulting, etc), for which it receives a "fee for service." Additionally, TPA collects and remits to CareFirst the fees paid by Plan Sponsor. Since TPA does not "handle" plan assets and does not exercise any discretion or control over the Plan, it is our belief that the TPA does not fall under the ERISA definition of Fiduciary. Would you agree? If TPA is arguably not a fiduciary, would an argument exist that the TPA is not required to fulfill the ERISA bonding requirements under Section 412? A review of Field Assistance Bulletin No. 2008-04 leads me to conclude that since TPA does not "handle funds or other property" of the plan (merely collects ans remits a fee to Carefirst) and does not adjudicate Claims, it would not be deemed a "Plan Official." Thoughts? Thank you...

Looking for some opinions on the following unique situation... Mark retired from Company A in 1998 and was receiving pension payments. In mid-2015, he was told he had a terminal illness and given only a few months. In his desire to assist his children/wife with dealing with his passing, he contacted Company A to learn what his wife needed to do after his death for her surviving spouse benefits. As a result of his call, Company A learned they had an administrative error and had been paying him as a single annuity since 1998, resulting in an over payment of $28K. He passed a few weeks after this call. Company A was notified of his passing and no future payments were made. Now, Company A is requesting his wife repay the $28K overpayment in lump sum, or actuarialy offset her surviving spouse benefits to pay it back over time. in my opinion, Company A should only be able to request repayment from the "estate of", and not from the surviving spouse. In the event there is no "estate", then Company A suffers a loss due to their administrative error. Interested in hearing opinions and thoughts about related laws. Much thanks!

Is the choice of a network by a plan sponsor of a self-insured plan a decision that is subject to ERISA's fiduciary requirements? For example and theoretically, can a employer that has participants primarily living in Florida choose a TPA whose network contains primarily Idaho providers? Or is this a settlor decision?

May an employer's ERISA-governed health plan make void a participant's attempted assignment of his or her right to get a payment concerning a covered medical service?

Technically these types of IRAs are ERISA plans. But, what provisions of ERISA are they subject to? They are not subject to most of the reporting and disclosure requirements (summary plan descriptions are required but no annual reports such as 5500s); they are not subject to the funding provisions; and they are not subject to the participation and vesting provisions.

Many people guess that a retirement plan’s administrator (not a recordkeeper or TPA) has an ERISA fiduciary duty to maintain the plan as a tax-qualified plan. Recently, a consultant told an employer that this idea is wrong. The consultant said that ERISA requires a plan’s administrator to administer a plan according to the plan’s written terms and ERISA. Further, the consultant said that if a plan becomes tax-disqualified in form because the employer failed to amend the plan, nothing in ERISA requires the administrator (in its role as the plan’s administrator) even to try to get the employer to amend the plan. In fairness, the consultant said that the administrator must use prudent care to not make (and not allow) any communication to describe anything about the plan’s or its transaction’s tax treatment in any way that is false or misleading. The consultant suggested revising the summary plan description to omit any explanation about tax treatment. The consultant suggested editing the § 402(f) notice (if any) so that every explanation is preceded by “If the Plan is a plan described in Internal Revenue Code § 401(a), ….” The consultant said that a plan’s administrator administers the plan that the employer created. Do you think that the consultant is right about the absence of an ERISA fiduciary duty? If not, why not? So that the reasoning is something more than a sense that something doesn’t seem fair or decent, what language in ERISA’s statutory text supports the fiduciary’s duty?

Hello All, I am having trouble accessing my 401(a) pension account from a company I left in 2005. I have called the company, but they say there is no provision for access to the account until age 59.5 and that they did not need to comply to ERISA since they are a Church Plan. This is different than what they told me a few years back when I was planning to roll the funds over into my current pension plan and I have a booklet they sent me back then seems to also provide for withdrawl or rollover upon separation from service, provisional upon payment of a 10% tax penalty. I called the company twice and spoke with two different people. One of them even said that since the account was entirely company funded, that it was their money until I retired. In the "Plan Details" section of my account online, the SPD is missing. When I asked the woman about this, she said that it used to be posted there but it wasn't anymore and she didn't know why. When I asked if I could get a copy emailed to me, she said it was only available to be sent to me by postal mail for $40.00. This whole thing seems really shady to me and I am wondering if I need to hire an Attorney? Anyone have any knowledge on this? Many Thanks Lindsay