Are these small welfare plans?

[sloble@crowleyfleck.com]

When counting participants for purposes of applying the small welfare plan filing exception, does 29 CFR 2510.3-3(d) allow you to exclude eligible employees who are not "COVERED" meaning those who: (1) have not met the plan definition of "participant," and (2) are not subject to the occurrence of the contingency for which the benefit is provided--I'm not sure what this means--I assume it means the employee applying for the benefit/requesting reimbursement, etc.; and (3) never make a plan contribution.

EBIA seems to think 2510.3-3(d) limits those eligible employees counted to "covered participants" -- ERISA Complioance volume p. 574.