HIPAA Certificates in multiemployer plans: What is a "waiting per

[Guest Dan Ashley]

HIPAA Certificates in multiemployer plans: What is a "waiting period" for purposes of Questions 9 and 10?

A typical construction industry multiemployer welfare plan design conditions eligibility upon a number of hours of bargaining unit service on which contributing employers submit contribution reports and pay contributions. For example, a plan may require 800 hours reported by contributing employers (and paid) during a 5 month period. When this requirement has been met, the worker is enrolled in the plan. A worker with 160 hours per month obviously gets in after 5 months. But a second worker who puts in 65 hours per week will work 260 hours a month and become eligible after 2 months, and a third worker who puts in 100 hours per month may never get in, even if he works 10 years. Q9 and Q10 on the HIPAA certificate specify the starting and ending dates of the waiting period. Would you put the date of hire in Q9, and the date of eligibility into Q10? That would mean worker 1's dates are 5 months apart, and worker 2's dates reflect a 2 month waiting period! The third worker is still waiting after 10 years. Can the period between hire and entry truly be a "waiting period"?

Why am I worried? DOL Reg 2590.701-4(B)(2)(iv)(Example 6) shows how a subsequent employer's plan may impose a shorter preexisting condition period, or may be precluded from excluding any pre-existing condition exclusion, because of the HIPAA certificate the multiemployer plan gives the former participant. Thus, the new plan might incur extra costs. If the multiemployer plan does this wrong, the new plan might sue the multiemployer plan for those extra costs.

Just to make this interesting, please note that DOL Reg 2590.701-2 does not define "waiting period".