Is this program covered by ERISA?

[Guest Do]

Employees of a 501©(3) employer defer to a TSA program. All the requirements of 2510.3-2(f) appear to be satisfied; therefore, the program is not “established or maintained by an employer.” Despite the program not being covered by ERISA, the employer has filed 5500s. Is filing 5500s tantamount to making (or constructively making) an election to be an ERISA plan? If so, can an employer revoke the election and stop filing 5500s? Can the employer just stop filing 5500s? If the program is covered by ERISA is it always covered by ERISA? I believe in bankruptcy context, once an ERISA plan, always an ERISA plan; however, in preemption context a plan can drop in and out of ERISA coverage (I remember a 9th Circuit case saying that). Perhaps, there is no election element to being covered by ERISA and that filing 5500s has no effect on ERISA coverage. Can anyone help me? This stuff is over my head.

[Guest CVCalhoun]

While the filing of a Form 5500 might be used as an indication of ERISA status in an otherwise dubious case, there is no "election" into ERISA per se, except for the limited one available to church plans. Thus, it would appear that the plan you are talking about would not be an ERISA plan.

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