Can AA reference the CBA for eligibility criteria?

We have a potential client that employs people in several different unions.  They want to start a plan for those union ee's only.  But there are different requirements for eligibility for each union.

The ER wants to put in "as specified in applicable CBA"

Is that kosher?

Sounds OK to me. I  thought I had an adoption agreement which said exactly that at one point. I am out of the office today so can't look it up but maybe somebody else can confirm.

We have language like that. It isn't a specific election in the AA, but you'd use an "other" choice, and the language is in the boilerplate section of the document. I suspect most preapproved plans do have some type of provision such as what you want, these days.

I think this is done a lot, but I have some concern over not having the terms of coverage actually in the plan document. I am not aware of any guidance, formal or informal, from IRS on the issue, but maybe someone out there will know of some.

The boilerplate language in our preapproved plan states that the terms of the CBA are incorporated by reference and attached to the AA as an Addendum. If it is good enough for the IRS, good enough for me! I probably should have specified this in my first response. Does this alleviate your concern?

Yes. Either way there is the practical problem that client will change the CBA without informing lawyer/plan drafter. We keep detailed tabular summaries including CBA expiration dates and ask client to update as necessary. But it can be a struggle.

I do not recommend the use of the language without incorporating the terms of the CBA  AND including the relevant contract as an addendum to the Plan. 

When permitting amendment through the CBA, I add:  If and to the extent such amendment purports to adopt a provision that would disqualify the plan, such purported amendment shall be of none effect.