New Affordable Care Act Guidance Helps Some Health Plans Stay Grandfathered

April 20, 2011

Guidance published by the Departments of Health and Human Services (HHS), Labor and the Treasury (the Agencies) on April 1, 2011 provides welcome clarifications about the workings of the “grandfathered health plan rules” that play a key role in determining what health plans and insurance policies must comply with certain key health insurance coverage reforms enacted as part of the Patient Protection and Affordable Care Act (PPACA), as amended by the Health Care and Education Reconciliation Act of 2010 (the Reconciliation Act) (collectively, the Affordable Care Act). 

Health plans, health insurers and sponsors, fiduciaries and service providers of these arrangements should monitor and consider carefully this and other emerging guidance when making decisions about the design and administration of health benefit programs in response to the Affordable Care Act.

Grandfathered Health Plan Status A Key Determinant of What Health Care Reform Rules Apply

While the Affordable Care Act generally requires that health plans and health insurance policies comply with a series of new mandates established by the Affordable Care Act beginning with the first plan year that begins after September 22, 2010, the Affordable Care Act, Interim Final Regulations originally jointly published June 17, 2010 as subsequently amended on November 17, 2011 (the Regulations).provide that certain plans or coverage existing on March 23, 2010 that qualify as “grandfathered health plans” are subject to only certain provisions of the Affordable Care Act.  The Affordable Care Act and Regulations refer to these plans or health insurance coverage as “grandfathered health plans.”

Qualifying As Grandfathered Health Plan

For plans and insurers wishing to preserve the grandfathered health plan status of their programs, understanding when changes or other events affect the health plan’s ability to qualify as a grandfathered health plan is critical to understanding the consequences and potential costs of proposed plan design changes or certain other actions.

For purposes of determining when an arrangement that existed on March 22, 2010 qualifies as a “grandfathered health plan” for purposes of ACA, the Regulations require that the plan meet certain notification, documentation and other requirements set forth in the Regulations.  The Regulation also provides a health plan that existed on March 23, 2010 will lose its eligibility for grandfathered status if the plan is amended to make significant changes that cut benefits or increase costs to covered persons. In order to avoid a loss of grandfathered health plan status, the Regulations require that except for certain “routine changes” identified in the Regulation, the health plan not have been modified or impacted by certain other changes after March 22, 2011. See HHS, DOL & IRS Rules Define “Grandfathered” Group Health Plans & Health Insurance Coverage under the Patient Protection and Affordable Care Act.  Consequently, sponsors, insurers and administrators of health plans or health insurance policies that intend to rely upon grandfathered health plan status to limit the mandates applicable to their programs under the Affordable Care Act need a clear understanding of what changes and events will disqualify their plan or program for grandfathered health plans status.

April 1 Guidance

The FAQIV guidance jointly published April 1 by the Agencies helps to clarify certain aspects of the workings of the grandfathered health plan rules as construed and implemented under these Regulations. FAQIV, among other things:

  • Clarifies the date that a loss of grandfathered status becomes effective as a result of a plan amendment or other change is the date that the plan amendment or other change that will result in the loss of grandfathered status takes effect under the terms of the plan;
  • Shares a non-exhaustive list of reasons for transferring employees from a grandfathered health plan to another health plan that the Agencies recognize as “bona fide employment-based reasons” that permit the transfer of employees from one grandfathered health plan to another plan without a loss of grandfathered health plan status;
  • States that forfeiture of grandfathered health plan status does not result solely as a result of an increase in the participant co-payment or other cost-sharing under a health plan that results because a drug originally classified as having no generic alternative changes because a generic alternative becomes available and is added to the formulary, with a resulting increase in the cost-sharing level for the brand-name drug;
  • States that for purposes of determining if a health plan has experienced a change in the employer contribution rate that would result in a loss of grandfathered health plan status in a health plan where the employer contribution is determined based on a formula, an increase in the amount of the required employee contribution resulting as plan costs increase will not trigger a loss of grandfathered status if the employer contribution formula (or its underlying elements used to calculate the contribution) does not change;
  • Provides added guidance about when a health plan can add or expand value based design features to a health plan without forfeiting its grandfathered health plan status; and
  • Invites public input about how the Agencies should treat value based plan design or wellness program related additions or changes to health plans for purposes of the grandfathered health plan rules.

FAQIV is only one of a continuous stream of new guidance about the Affordable Care Act and other federal and state health benefit program mandates which plan sponsors, insurers, administrators and fiduciaries need to understand and respond to effectively as they deal with their health benefit programs and arrangements.  Ms. Stamer is scheduled to conduct training on these and other health benefit requirements for a number of organizations over the upcoming month.  For information about these and other training opportunities or for other resources and information, see here or contact Ms. Stamer directly.

For Help or More Information

If you have questions or need help understanding or responding to the Regulations, with other health benefit design, administration or operations concerns, or with other employee benefits, compensation, labor or employment or other workforce management concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.

Past Chair of the American Bar Association (ABA) Health Law Section Managed Care & Insurance Interest Group, Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, and a council member of the ABA Joint Committee on Employee Benefits, Ms. Stamer is nationally recognized for her more than 23 years pragmatic and innovative health program work.

Board certified in labor and employment law by the Texas Board of Legal Specialization with extensive leading edge health plan experience, Ms. Stamer has worked continuously throughout her career helping health plan sponsors, fiduciaries, administrators, insurers and others design, administer and defend health and other employee benefit and insurance programs domestically and internationally. She is widely recognized for her experience helping design and implement legally compliant self-insured and insured health reimbursement, mini-med, high-deductible health plans, limited benefit plans, 24-hour and occupational medicine, ex-pat and medical tourism, deductible reimbursement and other creative health benefit programs to solve a wide range of financial and other challenges while coping with changing regulatory and market realities. Her work includes both working with clients to design, document, implement and administer these and other arrangements, as well as the development of wellness and disease management, claims administration and appeals, eligibility, and other administrative services, processes and technologies.  She also works with plan fiduciaries, plan sponsors, insurers, administrators, brokers and advisors, bankruptcy trustees, creditors, debtors, service providers and their officers and directors about the prevention, investigation, mitigation and resolutions of civil and criminal liability arising from suspected or known benefit administration claims, breaches of fiduciary duty, privacy and data security breach, vendor disputes and other disputes arising in relation to employee benefit and insurance arrangements.  As a continuing part of this representation, Ms. Stamer regularly represents and defends plan sponsors, fiduciaries, third party administrators and other service providers and management officials in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, World At Work, the ICEBS, SHRM and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Health Plans & Sponsors Should Monitor, Begin Preparing To Meet New Health Care Reform Low-Income Member Voucher Requirements

April 14, 2011

The Affordable Care Act will require employer sponsored plans to honor vouchers to help pay the cost of coverage for certain lower income individuals and children.

Employers and their health plans will face new responsibilities to figure relevant family income, to provide information about their plans and costs of coverage, and to follow voucher handling requirements for employees and others whose coverage will be paid for in whole or in part with these low-income vouchers.  While the rules are still evolving,  employers and health plans nevertheless need to start preparing to meet these new responsibilities.  Employers and heatlh plans need to keep an eye on the development of these rules at the Federal and state level and begin planning for how they will administer these responsibilities.  

A Kaiser Family Foundation Issue Brief discusses some of the ways and implications of income determinations to be made for this purpose.

For Help With Investigations, Policy Updates Or Other Needs

If you have questions or need help responding to the RFI or have any questions or need help understanding or dealing with these or any other workforce management, employee benefits, compensation or other internal control concerns, please contact the author of this update, Board Certified Labor and Employment attorney and management consultant Cynthia Marcotte Stamer here or at (469)767-8872.

Ms. Stamer has advised, represented, trained, and defend a broad range of employer, employee benefit plan, insurance and other clients in relation to electronic and other communications and other employee benefit concerns and frequently publishes and is interviewed about electronic and other employee benefit plan communications and other employee benefit plan matters.  Chair of the ABA RPTE Employee Benefit and Other Compensation Committee, a council member of the ABA Joint Committee on Employee Benefits, and the Legislative Chair of the Dallas Human Resources Management Association Government Affairs Committee, Ms. Stamer helps businesses, employee benefit plans and other organizations solve problems, develop and implement strategies to manage people, processes, and regulatory exposures to achieve their business and operational objectives and manage legal, operational and other risks. Board certified in labor and employment law by the Texas Board of Legal Specialization, with more than 23 years management-focused human resource and employee benefits experience, Ms. Stamer helps businesses manage their people-related risks and the performance of their internal and external workforce though appropriate human resources, employee benefit, worker’s compensation, insurance, outsourcing and risk management strategies domestically and internationally. Throughout her career, Ms. Stamer has continuously has advised and represented a broad range of fiduciaries, plan sponsors, bankruptcy trustees, creditors, debtors, service providers and their officers and directors about the prevention, investigation, mitigation and resolutions of civil and criminal liability arising from suspected or know breaches of fiduciary duty, fraud or other misconduct involving health, pension or other employee benefit and insurance arrangements.  As a continuing part of this representation, Ms. Stamer regularly represents and defends plan sponsors, fiduciaries, third party administrators and other service providers and management officials in dealings with the Department of Labor, Department of Justice, Department of Health & Human Services, Department of Defense, Securities and Exchange Commission, state insurance regulators, state attorneys general and other federal and state regulators and prosecutors and private plaintiffs in connection with investigations, prosecutions, audits and other actions arising from employee benefit, insurance and related arrangements and products.

Recognized in the International Who’s Who of Professionals and bearing the Martindale Hubble Premier AV-Rating, Ms. Stamer also is a highly regarded author and speaker, who regularly conducts management and other training on a wide range of labor and employment, employee benefit, human resources, internal controls and other related risk management matters.  Her writings frequently are published by the American Bar Association (ABA), Aspen Publishers, Bureau of National Affairs, the American Health Lawyers Association, SHRM, World At Work, Government Institutes, Inc., Atlantic Information Services, Employee Benefit News, and many others. For a listing of some of these publications and programs, see here. Her insights on human resources risk management matters also have been quoted in The Wall Street Journal, various publications of The Bureau of National Affairs and Aspen Publishing, the Dallas Morning News, Spencer Publications, Health Leaders, Business Insurance, the Dallas and Houston Business Journals and a host of other publications. In addition to her many ABA leadership involvements, she also serves in leadership positions in numerous human resources, corporate compliance, and other professional and civic organizations. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, World At Work, the ICEBS, SHRM and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

Other Helpful Resources & Information

If you found this article of interest, you also may be interested in reviewing other Breaking News, articles and other resources available here including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile here. For important information concerning this communication click here.  If you do not wish to receive these updates in the future, unsubscribe by updating your profile here.   

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©2011 Cynthia Marcotte Stamer, P.C.  Non-exclusive Right To Republish Granted To Solutions Law Press, Inc. All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Recap of IRS Employee Plans 2011 1st Quarter Guidance

April 10, 2011

Keeping on top of the employee plan guidance published by the Internal Revenue Service (IRS) and other relevant agencies can be critical to efforts of plan sponsors, fiduciaries, administrators and other service provider’s ability to anticipate plan design or other actions needed to maintain compliance or manage other concerns.  The following is a recap of the more significant the IRS Employee Plan guidance published by the IRS between January 1 and March 31, 2011. 

  • Notice 2011-33, 2011-19 I.R.B.:  Updates for the corporate bond weighted average interest rate for plan years beginning in April 2011; the 24-month average segment rates; the funding transitional segment rates applicable for April 2011; and the minimum present value transitional rates for March 2011.
  • Notice 2011-22, 2011-12 I.R.B. 557:  Updates for the corporate bond weighted average interest rate for plan years beginning in March 2011; the 24-month average segment rates; the funding transitional segment rates applicable for March 2011; and the minimum present value transitional rates for February 2011.
  • Announcement 2011-21, 2011-12 I.R.B. 567:  This announcement designates Form 8955-SSA, Annual Registration Statement Identifying Separated Participants With Deferred Vested Benefits, as the form to be used to satisfy the reporting requirements of §6057(a) of the Code for plan years beginning on or after January 1, 2009, and sets forth the due dates for filing the form for the 2009 plan year and subsequent plan years. .
  • Notice 2011-19, 2011-11 I.R.B. 550: This notice provides guidance regarding when securities of the employer are readily tradable on an established securities market or readily tradable on an established market for purposes of certain provisions of the Internal Revenue Code relating to employer securities held by certain qualified retirement plans. .
  • Announcement 2011-16, 2011-7 IRB 500:  This announcement corrects a typographical error in Rev. Rul. 2011-3.
  • Rev. Rul 2011-7, 2011-10 I.R.B.:  This revenue ruling provides guidance clarifying how the section 403(b) plan termination provisions apply. .
  • Announcement 2011-8, 2011-5 IRB 446:  This announcement corrects an error in Rev. Proc. 2011-8 in the user fee schedule that applies to a non-mass submitter of a master or prototype (M&P) plan.
  • Notice 2011-13, 2011-9 I.R.B. 529:  Updates for the corporate bond weighted average interest rate for plan years beginning in February 2011; the 24-month average segment rates; the funding transitional segment rates applicable for February 2011; and the minimum present value transitional rates for January 2011.
  • Notice 2011-7, 2011-5 I.R.B. 437:  Updates for the corporate bond weighted average interest rate for plan years beginning in January 2011; the 24-month average segment rates; the funding transitional segment rates applicable for January 2011; and the minimum present value transitional rates for December 2010.
  • Notice 2011-3, 2011-2 IRB 263:  The notice provides guidance on the special rules relating to funding relief for single-employer defined benefit pension plans (including multiple employer defined benefit pension plans) under the Preservation of Access to Care for Medicare. Beneficiaries and Pension Relief Act of 2010 (PRA 2010), Pub. L. No. 111-192.
  • Rev. Rul. 2011-3, 2011-4 I.R.B. 326:  The covered compensation tables under Code §401 for the year 2011 are provided to determine contributions to defined benefit plans and permitted disparity.
  • Rev. Proc. 2011-4, 2011-1 I.R.B. 123:  Annual EP/EO revenue procedure on letter rulings.
  • Rev. Proc. 2011-5, 2011-1 I.R.B. 167:  Annual EP/EO revenue procedure on technical advice.
  • Rev. Proc. 2011-6, 2011-1 I.R.B. 195:  Annual EP determination letter revenue procedure.
  • Rev. Proc. 2011-8, 2011-1 I.R.B. 237:  Annual EP/EO revenue procedure on user fees.

For Help With These Or Other Risk Management Matters

If you need assistance in accessing, assessing or auditing,  updating or defending your employee benefit or compensation arrangements and practices in response to this recent guidance or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here.

©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

IRS Guidance On Affordable Care Act Requirement That Employers Report Cost of Health Coverage On W-2 Released

April 9, 2011

The Internal Revenue Service has released an advance copy of interim guidance implementing requirements that employers report to employees of the cost of their employer-sponsored group health plan coverage required under Internal Revenue Code (Code) § 6051(a)(14) of the Code, as enacted as part of the Affordable Care Act.

The interim guidance contained in Notice 2011-28  generally applies beginning with 2012 Forms W-2 (that is, the forms required for the calendar year 2012 that employers generally are required to furnish to employees in January 2013 and then file with the Social Security Administration (SSA)). 

The Affordable Care Act will require that employers report to employees information about the cost of employer provided health care coverage beginning in January 2013.  According to Notice 2010-69, employers are permitted, but not required to report the cost of health coverage on any forms required to be furnished to employees prior to January 2013.  However, any employers that choose to report earlier (on the 2011 Forms W-2 generally furnished to employees in January 2012) may look to this notice for guidance regarding that voluntary earlier reporting.  

Reporting to employees pursuant to Code § 6051(a)(14) is for their information only. The report of the information is intended by Congress to inform employees of the cost of their health care coverage.  It does not cause otherwise excludable employer-provided health care coverage to become taxable.   This notice provides interim guidance that

Notice 2011-28 will be published in Internal Revenue Bulletin 2011-16 on April 18, 2011.

For Help With Affordable Care Act or Other Employee Benefits or HR Needs

The new W-2 reporting requirement is one of a multitude of changes impacting the responsibilities of employment based health care coverage enacted under the Affordable Care Act.

If you have any questions or need help responding to the Affordable Care Act or other any other health plan or insurance employee benefit, compensation, workforce or internal control concerns, please contact the author of this update, Cynthia Marcotte Stamer here or at (469)767-8872.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

If you or someone else you know would like to receive future updates about developments on these and other concerns, please be sure that we have your current contact information – including your preferred e-mail – by creating or updating your profile at here or e-mailing this information here. To unsubscribe, e-mail here.

 ©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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Posted by Cynthia Marcotte Stamer

Plan Sponsors. Their Owners & Management & Others Risk Personal Liability If Others Defraud Plans or Mismanage Employee Benefit Plan Responsibilities

April 4, 2011

Mitigate Risk With Appropriate Prevention, Monitoring & Response

Executives, board members, and other business leaders of companies providing health, 401(k) or other employee benefits under plans regulated by the Employee Retirement Income Security Act of 1974, as amended (ERISA) should heed a series of recent fiduciary liability settlement orders and lawsuits of the U.S. Department of Labor (Labor Department) as important reminders of the potential personal liability exposures executives can may face if their company’s benefit programs are not appropriately maintained and administered.

Recent Enforcement Actions, Changing Regulations Highlight Fiduciary Risks

On March 29, 2011, the Labor Department sued the owner of Eyeglass Factory, Inc. (EGF), Stephen Schaffer, for breach of fiduciary duties under ERISA by failing to ensure that EGF timely forwarded health plan contributions collected from employees to pay health plan contributions to the plan and failing to ensure that he and other plan fiduciaries and service providers were bonded in accordance with ERISA’s fidelity bond requirements.[i]  The Labor Department suit charges that from July 1, 2000 to October 1, 2000, Schaffer and EGF withheld and failed to forward to the health plan contributions deducted from employee pay for health insurance coverage and contributions made to the flexible benefit plan sponsored by EGF from January 1, 2000 to December 4, 2000.  The employees’ paycheck withholdings were commingled with the company’s general assets and used for its general operating expenses. The Labor Department is asking the court to order that Schaffer and other defendants make restitution to the plan for the misapplied contributions, including lost opportunity costs, to correct prohibited transactions and to appoint an independent fiduciary to oversee the plans once Schaffer is removed as the plan fiduciary.

The Schaffer suit follows the Labor Department’s successful prosecution of a breach of fiduciary duty action against Larry Lauterback, the president and former owner of a Minnesota Cement Company, for his role in allowing his construction company to commingle with company assets and divert to company use employee health and 401(k) contributions withheld from employee’s pay.  In Solis v. Larry Lauterback, [ii] the District Court ordered Lauterback to restore $17,273.18 in unremitted employee contributions and lost opportunity costs to the company’s health and dental plan, and $747.20 in unremitted employee contributions to the company’s 401(k) plan and enjoins Lauterback from serving or acting as a fiduciary or service provider to any employee benefit plan for three years..  The order followed the entry of a consent judgment against Lauterback and the plan sponsor, Slate Cement, Inc., for failure to remit employee contributions, failure to forward employee contributions to medical and dental providers, co-mingling employee contributions of the general assets and using those assets for company operations.

The Schaffer and Lauterback actions taken in March, 2011 are only the most recent in a series of enforcement actions taken against business executives, board members, plan vendors and others for their role in committing or failing to take prudent steps to prevent or redress alleged misconduct relating to the maintenance, administration and funding of various employee benefit programs regulated by ERISA.  In recent months and years, the Labor Department has filed several lawsuits against business executives and businesses for alleged breaches of fiduciary duties.  While misuse of employee contributions by plan sponsors is a common focus of many of these actions, plan sponsors, plan service providers and members of their management with discretionary authority or responsibility over plan assets or administration or the election of those appointed to administer those responsibilities often arise out of the failure or these individuals to take prudent steps to prevent, monitor or address misconduct by other plan fiduciaries or service providers.[iii]

Plan sponsors, fiduciaries, service providers and their management should anticipate these risks and their attendant responsibilities will continue to rise as the Labor Department moves forward to adopt and implement revisions and enhancements to its fiduciary regulations such as those provided for in the new “Interim Final Regulation Relating to Improved Fee Disclosure for Pension Plans” scheduled to take effect in July, 2011 and the Proposed Regulation on the “Definition of the Term Fiduciary” published by the Labor Department in July and October, 2010 respectively.

Meanwhile, the Labor Department enforcement activities highlight the longstanding and ongoing policy of aggressive investigation and enforcement of alleged misconduct by companies, company officials, and service providers in connection with the maintenance, administration and funding of ERISA-regulated employee benefit plans.  In its Fiscal Year 2010, the Labor Department closed 3,112 civil investigations, of which 2,301 (73.94%) resulted in monetary recoveries or other corrective action.  The Labor Department referred 264 cases for civil litigation and filed 128 civil lawsuits.  Meanwhile on the criminal side, the Labor Department closed 281 criminal investigations and obtained indictments against 96 people.

In addition to prosecutions brought by the Labor Department, companies and individuals that exercise discretion and control of the administration or funding of employee benefit plans regulated by ERISA also may be sued personally by participants and beneficiaries for breach of fiduciary under ERISA.  A review of the Labor Department’s enforcement record and existing precedent makes clear that where the Labor Department perceives that a plan sponsor or its management fails to take appropriate steps to protect plan participants, the Labor Department will aggressively pursue enforcement regardless of the size of the plan sponsor or its plan, or the business hardships that the plan sponsor may be facing.

Plan Sponsors, Fiduciaries, Service Providers & Their Management Should Act To Manage Exposures

Given these exposures, businesses providing employee benefits to employees or dependents, as well as members of management participating in, or having responsibility to oversee or influence decisions concerning the establishment, maintenance, funding, and administration of their organization’s employee benefit programs need a clear understanding of their responsibilities with respect to such programs, the steps that they should take to demonstrate their fulfillment of these responsibilities, and their other options for preventing or mitigating their otherwise applicable fiduciary risks.  

To help guard and position themselves to defend against these and other exposures, plan sponsors, fiduciaries, service providers and others involved in the administration of health or other employee benefit plans should seek the advice of legal counsel with appropriate experience with employee benefit and other related matters to develop an understanding of ERISA and other laws and the duties and liabilities that these rules may create for their organizations and themselves personally.  For additional tips and information about managing these risks, see here.

For Help With These Or Other Risk Management Matters

If you need assistance in auditing or assessing, updating or defending your wage and hour or with other labor and employment, employee benefit, compensation or internal controls practices, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 23 years of work helping employers; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend wage and hour and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on wage and hour, worker classification and other human resources and workforce, employee benefits, compensation, internal controls and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For additional information about Ms. Stamer and her experience or to access other publications by Ms. Stamer see here or contact Ms. Stamer directly.

About Solutions Law Press

Solutions Law Press™ provides business risk management, legal compliance, management effectiveness and other resources, training and education on human resources, employee benefits, data security and privacy, insurance, health care and other key compliance, risk management, internal controls and operational concerns. If you find this of interest, you also be interested reviewing some of our other Solutions Law Press resources including:

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©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

[i] Chao v. Stephen Schaffer, the Eyeglass Factory, Inc., No O2-CV-60197, as announced in EBSA Release No. 11-341-CHI (March 29, 2011).

[ii] Solis v. Larry Lauterback, as announced in EBSA Release No 11-322-CHI (March 14, 2011).

[iii] See, e.g.  Chao v. Associated Plan Administrators, as announced in EBSA Release No. 07-1265-BOS/BOS 2007-298 (October 16, 2007); Chao v. Starkey, as announced in EBSA Release No. 05-747-ATL (May 2, 2005); Chao v. Perry., as announced in EBSA Release BOS 2002-054 (March 21, 2002); Chao v. Mabry, as announced in EBSA Release No. 160 (March 20, 2002).  See also, e.g.,  Baker v. Kingsley, 2006 WL 2027606 (N.D.Ill.2007); In Re Enron Corp Securities Derivative & “ERISA” Litigation, 284 F.Supp. 511 (S.D.Tex. 2003); Varity Corp. v. Howe, 516 U.S. 489 (1996); Brink v. DeLesio, 496 F. Supp. 1350 (D.Md. 1980).

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