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COBRA and SPD


Belgarath

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Suppose a Section 125 plan provides only FSA and DCAP. They also have a "cash in lieu" option where anyone eligible for the company group health insurance can either have a certain amount contributed to the 125 plan to be used for benefits, or they can elect to receive it in cash, taxable in their normal paychecks.

The COBRA provisions, if applicable, are "administered" by a third party. Is it allowable for the employer to attach to the SPD a written COBRA explanation provided by the third party? Or must it be in the SPD as part of a self-contained single document?

I don't, EVER, have anything whatsoever to do with COBRA, so I essentially know nothing about how COBRA information must be presented.

Employer is a retirement plan client of ours, so I'm trying to assist them somewhat with questions, but this is out of my bailiwick. I don't think the the third party "administrator" is apparently being very helpful, or necessarily even doing documents - not like a typical TPA in the retirement plan world. Their 125 document provider from way back is long gone.

Thanks for any thoughts.

P.S. - while we are at it, same question for a governmental plan (state municipality). Although not subject to ERISA, still subject to COBRA, so other than the "SPD" not really being an ERISA SPD, but rather a "Summary of Plan Provisions" or whatever you want to call it, COBRA information still required. But maybe more flexibility on how it is communicated?

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If one follows the Labor department’s rule, an ERISA-governed group health plan’s summary plan description includes a description or explanation about part 6 continuation coverage.

29 C.F.R. § 2520.102-3(o) (Contents of summary plan description) https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XXV/subchapter-C/part-2520/subpart-B/section-2520.102-3#p-2520.102-3(o).

For two elements of information (a provider network, a claims procedure), the rule allows a plan’s administrator to furnish something as a document separate from the rest of the summary plan description if the SPD “contains a general description of the provider network [or claims procedure] and . . . the SPD contains a statement that [the other document is] furnished automatically, without charge, as a separate document.”

The rule specifies how to use a separate document for those two elements, and has no similar or parallel mention for any other element of information, including those the SPD-contents rule specifically commands. That might suggest to some readers that the Secretary of Labor might not have meant to enable using a separate document for the required explanation about continuation coverage.

Yet, some plans’ administrators use widely a range of methods, with widely varying ways of seeking to integrate several separate documents as “the” summary plan description.

Another method I’ve seen some plans’ administrators use is to download the word-processing text of the Labor department’s “model general notice” (or the COBRA service provider’s adaptation of it) and edit that text to serve as a summary plan description’s explanation.

https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra#employers

Belgarath, please recognize this is an observation about what others do, and none of it is my advice.

About a governmental plan, those involved might resolve the questions in different ways.

Peter Gulia PC

Fiduciary Guidance Counsel

Philadelphia, Pennsylvania

215-732-1552

Peter@FiduciaryGuidanceCounsel.com

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