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Category Archives: Plan Administration

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The Case of the Accidental Fiduciary: When a Signature is More Than Just a Name

Posted in Court Cases, Plan Administration

The issue of fiduciary status is often cumbersome because while a fiduciary can be directly named by a plan, someone can also be deemed to be a fiduciary by virtue of having discretionary authority, or even by exercising some discretionary authority through plan administration.  Consider the case of Perez v. Geopharma, a case from the … Continue Reading

Draft Instructions for PPACA Reporting Requirements: Get Ready for 2015

Posted in Plan Administration, Welfare Plans

They promised they would be coming and now they have.  On August 28, 2014, the IRS issued draft instructions for Forms 1094-C and 1095-C and Forms 1094-B and 1095-B, which I provided in my July 31, 2014 entry.  These forms were provided in draft format and they are used to satisfy PPACA’s “information reporting requirements.” We also got … Continue Reading

COBRA Notice Penalties: Employer Pays Even Though They Also Paid Bills

Posted in Court Cases, Plan Administration, Welfare Plans

The issue of COBRA notices and penalties can create problems when considering who is entitled to the notice and when they have to be issued.  When claims are brought for alleged violations of the provision of COBRA notices, some employers assume that they can just avoid penalties if there are not actual damages, say for … Continue Reading

New Rates for “Affordable Coverage” for 2015: Rev. Proc. 2014-37

Posted in Plan Administration, Welfare Plans

Under the terms of the ACA, large employers are required to provide affordable coverage beginning in 2015 or potentially face penalties.  For 2014, the definition of affordability was set at 9.5% of the employee’s income.  Within the definition of affordability, there is also a provision that provides for adjustment of that figure in the future … Continue Reading

ACA Reporting for Employers: IRS Releases Draft Forms

Posted in Plan Administration, Welfare Plans

Under the ACA, there are two unique reporting requirements.  The first is the “individual mandate reporting” requirement under Section 6055 of the Code.  The second is the “pay or play reporting” requirement under Section 6056.  Many employers have been wondering about how onerous these reporting requirements may be and while not finalized, the IRS did … Continue Reading

Subsidies in the Federal Marketplace: A Definite Maybe

Posted in Court Cases, Plan Administration, Welfare Plans

Amidst all of the other issues surrounding implementation of the ACA, there is an underlying issue about whether or not subsidies (in the form of tax credits) are available for individuals who obtain coverage through the federal exchange marketplace as opposed to the state exchanges.  Many states have determined not to offer exchanges, which means … Continue Reading

Disclosures with Respect to Preventative Care: DOL Notice Requirement post-Hobby Lobby

Posted in Court Cases, Plan Administration, Welfare Plans

It seems like one of the hardest parts of ACA compliance is waiting for guidance on specific issues.  However, after the decision in Hobby Lobby, the DOL promptly issued FAQ Part XX that addresses the notice requirements for employers who cease providing contraceptive services.  The FAQ has a single question and is reprinted below in … Continue Reading

Don’t Get Cute with ACA Compliance: Hobby Lobby, Safe Harbors and ERISA Concerns

Posted in Plan Administration, Welfare Plans

With the Supreme Court’s decision in the Hobby Lobby case, and the granting of the injunction for Wheaton College that came shortly thereafter, there has been considerable hand wringing over the long term implications these decisions might have.  Plan administrators and sponsors dealing with the ACA should not forget about the short term compliance requirements.  … Continue Reading

“Hobby Lobby” Decision Cuts Unique Exemption into Affordable Care Act’s Contraceptive Coverage Requirement

Posted in Court Cases, Plan Administration, Welfare Plans

On June 30, 2014, in a 5-4 decision, the U.S. Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. (“Hobby Lobby”) that closely held for-profit companies that formed their companies for a religious purpose can qualify for an exemption from the Patient Protection and Affordable Care Act (“ACA”) requirement to pay for certain contraceptive … Continue Reading

Moench On This – U.S. Supreme Court’s Decision in Fifth Third Bancorp v. Dudenhoeffer for ESOP Fiduciaries

Posted in Court Cases, Plan Administration, Retirement Plans

On June 25, 2014, in a unanimous decision, the U.S. Supreme Court in Fifth Third Bancorp v. Dudenhoeffer, held that fiduciaries of employee stock ownership plans (ESOPs) are not protected by a presumption that they have acted prudently in making investment decisions—a presumption commonly referred to as the “presumption of prudence” or the “Moench presumption.” … Continue Reading

Trials and Tribulations: Agencies Clarify Confusing “Trial Period” Exemption under the Affordable Care Act

Posted in Plan Administration, Welfare Plans

Last week (June 20), the agencies implementing the Affordable Care Act (“the ACA”) released a final rule clarifying the effect of orientation periods (also known as “trial periods”) on the “90-day waiting period rule” under the ACA.  The “90-day waiting period rule” prohibits group health plans and health insurance issuers from imposing a waiting period … Continue Reading

FAQs About the ACA: Out-of-Pockets and Preventative Care

Posted in Plan Administration, Welfare Plans

The Department of Labor FAQ XIX provided model notices for COBRA and, unfortunately, not everyone looked beyond that part to see that some other issues were addressed.  Specifically, Department addressed the new rules applicable to out-of-pocket limits and the preventive services requirement.  So let’s look back at that notice and see what else was provided … Continue Reading

DOL Delays Its Proposal to Expand Definition of “Fiduciary”

Posted in Plan Administration

The U.S. Department of Labor (“DOL”) recently announced that it will, once again, delay its proposal to redefine (and ultimately expand on) the term, “fiduciary,” as it relates to employee benefit plans.  Specifically, the DOL’s re-proposal of this rule, what it is calling “Conflict of Interest Rule-Investment Advice,” will be issued in January of 2015. … Continue Reading

New Post-Windsor Guidance on Same-Sex Marriage

Posted in Court Cases, Plan Administration, Retirement Plans, Welfare Plans

Susan Jordan, one of my partners in Pittsburgh, provides the following guidance with respect to the IRS’ recent guidance on treatment of same-sex marriage: In its decision in United States v. Windsor, handed down on June 26, 2013, the United States Supreme Court declared Section 3 of the Defense of Marriage Act to be unconstitutional. … Continue Reading

Disclaimers Can Be A Good Thing, Particularly in Benefit Notices

Posted in Court Cases, Plan Administration, Retirement Plans

With the requirement that retirement plan administrators provide statements to retirees of account balances and benefit levels on a regular basis, the concept of including a disclaimer on the notices can be overlooked.  Most administrators and reluctant to state that the benefits may be subject to change in the future.  Particularly in the defined benefit … Continue Reading

New Model COBRA Notices Issued By DOL: Updating “Good Faith Compliance”

Posted in Plan Administration, Welfare Plans

Earlier this week, the Department of Labor issued new proposed regulations that revise the COBRA notice requirements.  Because the regulations are proposed, they are not final per se, but in the release, the DOL published new model COBRA notices.  Until the proposed regulations are finalized and effective, the DOL has stated that it will consider … Continue Reading

Don’t Get Cute When Documents Are Requested: ERISA Penalty Provisions for “Hiding” Plan Documents

Posted in Court Cases, Plan Administration, Retirement Plans, Welfare Plans

ERISA generally requires that plan participants get copies of summary plan descriptions, plan documents and annual reports when requested. ERISA Section 104(b)(4) provides that “the administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining … Continue Reading

Failure to Address the 90-Day Waiting Period Rule in a Handbook or CBA Can Cause Problems

Posted in Plan Administration, Welfare Plans

Earlier this year, the agencies implementing the Patient Protection and Affordable Care Act (“the ACA”) published a final rule (“the Regulation”) that prohibits health plans and health insurance issuers from applying any waiting period that exceeds 90 days (i.e., the “waiting period” that must pass before an individual is eligible to receive benefits under a health … Continue Reading

Employers Start Your Reporting (or at Least Start Preparing)

Posted in Plan Administration, Welfare Plans

Effective in 2015, PPACA requires that employers “report” information about the health coverage they offer to employees.  IRC Section 6055 requires employers and insurers to report information about the entity providing coverage, including contact information and a list of individuals with identifying information and the months they were covered.  Under IRC Section 6056, entities must report … Continue Reading

April is a Busy Month: IRS Releases Guidance on Same Sex Marriage and Retirement Plan Rollovers

Posted in Plan Administration, Retirement Plans

We are less than halfway into April and already the IRS has issued two notices that provide some long awaited guidance related to retirement plan administration.  One addresses treatment of same-sex marriages post-Windsor and the other deals with rollovers by qualified retirement plans. Notice 2014-19 clears up some of the issues related to the timing … Continue Reading

Why It’s Not Too Late for Your Employees to Get on the Exchange—Special Enrollment Periods

Posted in Plan Administration, Welfare Plans

Now that we’ve passed the important deadline of March 31, 2014 for signing up on the Health Care Exchange/Marketplace (“the Exchange”), employers are asking questions about options for employees who did not get into the exchange, like is it too late for them to get coverage.  Most of the time this question comes from employers … Continue Reading

DOL Hopes Proposed Amendment to Fee Disclosure Rules Will be Useful Roadmap in Difficult Terrain

Posted in Plan Administration, Retirement Plans

Perhaps after reading too many voluminous, jargon-filled fee disclosure agreements, the Department of Labor (“DOL”) became fed up and decided to take action. Last week, the DOL issued a proposed rule (“the Proposed Rule”) that would amend its final service provider fee disclosure regulation (“the Final Rule”) under ERISA Section 408(b)(2). The Proposed Rule will require … Continue Reading