QDRO for Top Hat Plan

[ERISA25]

My question is whether a top hat plan has to supply information as required by Title I of ERISA if it receives a QDRO. Although top hat plans are exempt from Parts 2, 3 and 4 of Title I of ERISA, they are subject to Part 1, which includes reporting and disclosure requirements, and Part 5, which includes criminal penalties for willful violation of the reporting and disclosure requirements.

ERISA Sections 104(b)(4) and 105 are included in Part 1 of Title I. A plan administrator will, however, be deemed to satisfy the reporting and disclosure provisions of Part 1 by filing a top hat filing with the Secretary of Labor. Thus, it seems to me that if a top hat filing was timely made, the plan administrator does not have to comply with any reporting or disclosure requirements under Part 1.

My question has two parts: 1) if a PA receives a signed authorization from particpant to release top hat plan info to requesting attorney (atty drafting qdro), does the PA have to distribute such information; and 2) does a top hat plan have to comply with a QDRO?

[david rigby]

Duplicate post.

http://benefitslink.com/boards/index.php?showtopic=42977

[mbozek]

Duplicate post.

http://benefitslink.com/boards/index.php?showtopic=42977

Even if the QDRO rules do not apply to top hat plans not subject to the non alienation provisions of ERISA (I thought the issue was settled years ago when Met Llife won a number of cases in different circuits (1,2,4,6,7,10,11th) holding that QDROs applied to group life insurance plans which are not subject to ERISA 206(d)), what benefit is to be gained from such obstructionist behavior of refusing to process the DRO if the participant consents to releasing the information? Under Rev Ruls 2002-22 and 2004-60 non Q benefits can be divided up without the participant incurring taxation on the portion of the benefits transferred to the AP.

There is also case law holding that ERISA does not preempt a state court DRO for welfare (LI) benefits and that such order could be enforced against the plan even though the DRO did not meet the requirements for a QDRO, because QDROs only apply to pension benefits subject to 206(d) and DROs for non pension plans do not have to comply with the QDRO requirements. Rudolph v. Public Service, 847 F Supp 152; Equitable v Crysler 66 F3d 944. Therefore it may not be possible to reject a DRO for top hat benefits on preemption grounds because the exception to preemption of state laws for valid QDRO meeting the requirements of ERISA only applies to plan subject to ERISA 206(d) non alienation.