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Housing assistance benefits It is relatively simple to establish a plan, fund or program—any ongoing administrative scheme will satisfy this condition although numerous court cases apply some fine distinctions when determining whether very simple plans, especially simple severance plans, have the necessary ongoing scheme. Showing that an employer maintains a plan is also straightforward—any contribution by the employer toward payment of benefits or administration of the plan is substantial including a contribution toward insurance coverage. There are important statutory exemptions and regulatory safe harbors carving out plans that might otherwise fall within the ERISA plan definition. Also exempt are programs maintained solely to comply with state-law requirements for workers' compensation, unemployment compensation, or disability insurance, as are plans maintained outside the United States for nonresident aliens. The key to this payroll-practice exemption: Under such an arrangement, the employer allows an insurance company to sell voluntary policies to interested employees who pay the full cost of the coverage. The exemption permits employees to pay their premiums through payroll deductions and permits the employer to forward the deductions to the insurer. However, the employer may not contribute toward coverage and the insurer may not pay the employer for being allowed into the workplace. In other words, the insurance company, not the employer, must be the entity offering the plan. Among the activities identified as relevant by the many court cases interpreting this exemption are the following: ERISA does not require an employer to provide employee benefits. Likewise, as a general rule, it does not require that plans provide a minimum level of benefits. Employers-sponsors are generally free to design their own benefits plans. As mentioned above, ERISA specifically requires that an employee benefit plan, including a welfare benefit plan, be established in writing. Many employers fail to consider the requirements of having a written plan document, or mistakenly assume that written insurance policies or other booklets or summaries provided by the insurance company are sufficient to meet this document requirement. Of course insurer documents should comply with all applicable legal requirements; insurers must provide adequate disclosures and notices, and must follow federal and state compliant claims procedures and applicable HIPAA regulations. Further, insurers assume responsibility only in regards to problems with insufficiency or inconsistency, or compliance failure with state regulations, not ERISA regulations. Most policies, certificates, summaries and other documentation produced and distributed by an insurer generally specify that the employer is the plan sponsor, plan administrator, agent for service of process, and the named fiduciary. In sum, it is the employer who is held accountable for any plan failures or compliance issues. Given that the employer-sponsor typically is the plan administrator, it follows that the employer not the insurer generally is responsible for furnishing Summary Plan Descriptions SPDs , and that the employer will be held liable if adequate SPDs are lacking. Of course insurance carriers are responsible for paying claims. Yet, as mentioned above, many employers mistakenly assume that carriers also provide SPDs. Instead, even when an insurer provides booklets describing benefits for distribution to participants, the insurer generally does not assume the statutory responsibility for SPDs. Covered participants but not beneficiaries Under the literal language of ERISA, an SPD must be furnished to each participant and to each beneficiary receiving benefits under the plan. The Department of Labor DOL has authority, however, to exempt any welfare benefit plan from all or part of the reporting and disclosure requirements. Under DOL regulations, the plan administrator of a welfare benefit plan is required to furnish SPDs and SMMs to participants covered under the plan only, and not to beneficiaries. Because the definition is not limited to current employees, it can include COBRA qualified beneficiaries, covered retirees, and other former employees who may remain eligible under a plan. At least one court has determined that SPDs need not be distributed to employees before they join a plan. Provided that they all live at the same address, it appears that the SPD may be furnished, for example, to the covered employee on behalf of other qualified beneficiaries in the same family unit or to the spouse who elects COBRA coverage for children in the same family unit. Generally, the SPD should be furnished to the custodial parent or guardian of a minor child. Spouses and other dependents of deceased participants Despite the regulatory carve-out for beneficiaries as noted above, the spirit of the disclosure obligation suggests that, where there is no participant to receive an SPD, the document should be furnished to the persons who remain entitled to plan benefits. Thus, plan administrators should adopt a practice of furnishing SPDs and SMMs to spouses or other dependents of a deceased participant who continue to receive benefits after the participant's death e. Representatives or guardians of incapacitated persons Under case law, SPDs and SMMs should be provided to a representative or guardian when the plan is on notice that the participant or other person entitled to an SPD is incapacitated. Employees eligible to enroll in a plan Even though an SPD technically is not required until an employee is covered by a plan, some employers provide SPDs along with necessary enrollment forms to employees who are eligible to enroll in a plan, when enrollment is necessary in order to be covered by the plan. Regardless of whether SPDs are furnished to eligible employees before they enroll, it is essential that these employees receive some kind of effective notice that active enrollment and payment of premiums is a condition of receiving benefits under the plan. If non-SPD enrollment materials are used for this purpose, the enrollment materials should contain information about where to obtain an SPD. There are no initial penalties for failure to prepare or distribute a required SPD, unlike the case with Form reporting failures. Instead, repercussions from failing to have an adequate SPD arise when participants and beneficiaries sue to enforce plan rights. An inadequate SPD for example, one that conflicts with the plan document it seeks to summarize will normally be enforced by the courts in lieu of the underlying plan document, if doing so will favor the participant or beneficiary involved. In sum, without an adequate SPD in place employers can end up being liable for benefits they never intended to provide. The courts have been relatively protective of the right of participants and beneficiaries to receive adequate SPDs. Many reported cases address what should happen when a conflict exists between an SPD and the underlying plan document or insurance contract. What is the four-page summary of benefits and coverage required by Healthcare Reform? Although effective for plan years beginning on or after September 23, , the four-page summary requirement contains a special distribution deadline of 24 months after the enactment of PPACA March 23, The standards are to be developed in consultation with the National Association of Insurance Commissioners NAIC , a working group composed of a representatives of health insurance-related consumer advocacy organizations; b health insurers; c healthcare professionals; d patient advocates including those representing individuals with limited English proficiency ; and e other qualified individuals. Once developed, the standards are to be periodically reviewed and updated. The four-page summaries must be provided by plan administrators for self-insured health plans and insurers for insured health plans. Self-insured plans must prepare and provide the four-page summaries themselves or make arrangements with a third-party administrator to provide the notice on the plan's behalf. Finally, if the third-party administrator fails to provide the four-page summaries, the plan will be out of compliance and subject to penalties, as required under the healthcare reform law, despite its arrangement with the third-party administrator. Full title for Form This requirement is detailed below. Full title for Schedule M IRS Form is used for this purpose. Penalties may be assessed for late or un-filed Form s as well as for incomplete or otherwise deficient Form s. What are the amount and period of statutory civil penalties? The penalties for noncompliance can be heavy: No statute of limitations The DOL also apparently takes the position that it is not subject to a statute of limitations with respect to Form As such, it can assess penalties in connection with Form failures reaching as far back as the plan year the first plan year following the ERISA amendment giving the DOL authority to assess Form penalties. Failure to correct a missed or incomplete Form may therefore leave the liability open and the potential penalty amount compounding. Learn more about our integrated administrative solutions:
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