PROTECTING YOUR CLIENT FROM ERISA S SIGNFICANT LIABILITIES WHILE SHORING UP YOUR CLIENT BASE AND EXPANDING YOUR BUSINESS

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1 PROTECTING YOUR CLIENT FROM ERISA S SIGNFICANT LIABILITIES WHILE SHORING UP YOUR CLIENT BASE AND EXPANDING YOUR BUSINESS BERNARD V. KEARSE, III ERISA PROS, LLC 990 Hammond Drive, Suite 800, Atlanta, Ga., toll free: , local

2 ERISA COMPLIANT HEALTH & WELFARE PLAN DOCUMENTS Wrap-Tight SM Plan Documents Summary Plan Descriptions (SPD) Form 5500s Summary of Material Modifications (SMM) Summary Annual Reports (SAR) 990 Hammond Drive, Suite 800, Atlanta, Ga., toll free: , local

3 What is ERISA? A Federal Law to protect individuals in welfare benefit plans by requiring employers of all sizes to provide participants with plan information including important plan features and funding through written plan descriptions in addition to establishing fiduciary responsibilities for those who manage the plan.

4 ERISA is governed by the U.S. Department of Labor and enforced by the Employee Benefits Security Administration (EBSA). The EBSA is responsible for ensuring the integrity and compliance of the private employee benefit plan system in the United States.

5 Why Are Many Employers Not In Compliance? Overall Lack of Awareness in the Market Carrier Documents Thought to be Compliant Confusion Due to a Complex Area of the Law Limited Enforcement by Former Administrations

6 Why Is Compliance More Important Than Ever? Increased Enforcement by Present Administration DOL s EFAST2 Form 5500 Reporting Technology Additional Disclosure Under Healthcare Reform New Penalties Being Implemented by PPACA Heightened Participant Expectations of Benefits

7 Unique Conditions Create Opportunity Almost Every Employer is Required to Comply Healthcare Reform Affects Almost Every Business 55% of Employers are Out of Compliance with 5500s Even Fewer Provide Summary Plan Descriptions Mr. Opportunity Be Confident that the Right Approach will Open Doors and Close New Business!

8 ERISA Documents Required for Compliance Plan Document A written description of each Welfare Benefit Plan the Employer offers including the terms and conditions and administration of the plan. Summary Plan Description The SPD is the main vehicle for describing Plan rights, obligations and material provisions of the Plan Document. Summary of Material Modification The SMM is a summary of changes to a plan such as deductibles, eligibility, and the addition or deletion of a line of coverage.

9 Annual Reports Required for ERISA Compliance Annual Form 5500 An IRS Form filed electronically through the DOL s EFAST2 system reconciling the financial condition of and contributions to the plan. Summary Annual Report The SAR is a summary of Form 5500 information, which must be provided to participants and beneficiaries of the plan.

10 Who is Required to Provide SPDs & File 5500s? Plan Document & SPD Almost every employer regardless of size is required to provide a written Plan Document and SPD for each plan. Form 5500 All employers with 100 plan participants for each plan are required to file Form 5500 and provide a Summary Annual Report. * Governmental and Church Plans are exempt from ERISA; however, they are subject to certain disclosure laws, including claims procedures under PPACA.

11 What Welfare Benefits are Subject to ERISA? Most Common: Medical, HMO, PPO Dental Care Vision Plans Prescription Drug Health FSAs Life Insurance Disability Insurance Other Plans: Severance Pay Health Reimbursements Employee Assistance Unemployment Benefits Vacation Plans Holiday Plans Business Travel Accident May Include Other Employer-Endorsed Voluntary Benefit Plans

12 Are Carrier Documents ERISA Compliant? Master Contract Defines Employer Relationship: Grace Period and Due Date Contestability Clause Premiums MASTER CONTRACT Certificate of Insurance Defines Employee Relationship: Terms and Conditions of Coverage Explains Co Pays and Deductibles Identifies Covered & Excluded Items CERTIFICATE OF INSURANCE

13 What Language is Required for ERISA Disclosure? SUMMARY PLAN DESCRIPTION There are well over 30 possible disclosures. A few are listed below: Plan Sponsor s TAX ID # Administrator s Name & Address Plan Number for 5500, e.g., 501, 502 Agent for Service of Legal Process Plan Eligibility & Entry Dates Cost Sharing of Plan Refund Allocation Policy (MLR) Additional PPACA Disclosures

14 What is Important Language in Plans & SPDs? Identifies Plan Sponsor: Controlling Employer means the plan sponsor, [Employer XYZ]. If the Controlling Employer merges or is otherwise consolidated with any Affiliated Employer, the surviving employer, as to the group of Employees covered by the Plan immediately before such merger or consolidation and to the group of employees of Affiliated Employers thereafter adopting the Plan, shall become the Controlling Employer, unless the Controlling Employer that will be merged out of existence specifies in writing to the contrary. Participating Employers: Affiliated Employer: means any corporation, limited liability company, or other business entity that is under common control with the Controlling Employer (as determined under Code Section 414(b) or (c)); a member of an affiliated service group with the Controlling Employer (as determined under Code Section 414(m)); or an entity required to be aggregated with the Controlling Employer pursuant to Code Section 414(o). Affiliated Employers that have adopted the Plan are listed in Exhibit B.

15 What is Important Language in Plans & SPDs? Right to Amend Add or Delete Coverage: The Controlling Employer reserves the right to amend the Plan and any Component Benefit Plan from time to time, including amendments that are retroactive in effect to the extent permitted by law. With respect to any Component Benefit Plan funded through a trust, an amendment may not change the duties and liabilities of the Trustee without the consent of the Trustee and, in all events, shall notify the Trustee of any amendment of the applicable Component Benefit Plan within a reasonable period of time. Insurance Company Refund Refund Distribution: With respect to any insurance company refund received by the Employer, such amount will be refunded to current employees in the same ratio that their contributions bear to the total cost of the applicable Component Benefit Plan at the time of distribution ( Contribution Ratio ) with the balance being retained by the Employer. If such refund is not practicable, such refund shall be used to reduce future employee contributions (if any) on a prorata basis consistent with the Contribution Ratio (which distribution shall not exceed 90 days of the refund).

16 What is the Time Line for ERISA Notice & Reporting? Plan Year End 3 months 4 months 7 months 9 months SPD Form 5500 SMM For an existing plan, employers are required to provide an SPD within 90 days of enrollment. (Additional time applies for a new plan 120 days from the plan s establishment.) Must be filed electronically within 7 months after the end of the Plan Year 210 days upon end of the Plan Year* (Special accelerated rule applies where participant requests an SMM - 30 days upon participant request) *For Health Plans only, additional special rules apply: notice must be given within 60 days of a Material Reduction in Covered Services or Benefits. SAR Distributed to Plan Participants within 9 months after the end of the Plan Year

17 What are the Penalties for Non-Compliance? Existing Penalties: Penalties up to $1,100 Per Day for Not Filing Form 5500 $110 Per Day for Not Providing Plan Documents Case Law: $86,500 Failure to File a Complete and Accurate Form 5500 Airport Hospitality, LTD, King of Prussia, Penn., 2010 $241,000 Failure to Provide SPD to Participant Gorini v. AMP Inc., 117 Fed. Appex, 193 (3d Cir. 2004)

18 What are EFAST2 s Capabilities? New Mandatory Filing Requirement for Form 5500 Automated Auditing Capability Primary Enforcement Tool Previous History Filing Reports Source:

19 ERISA Enforcement Nets $1.36 Billion in Enforcement: $1.2 Billion in Penalties 175K Individual Complaints 2009 Enforcement: $1.36 Billion in Penalties 365K Individual Complaints Increase In Penalties: $160,000,000 Increase In Complaints: 108%

20 How Is the DOL Stepping Up Enforcement? New Secretary of Labor Requested Hiring 1000 New Employees 670 Investigators Budget Neutral Payroll from Penalties

21 How Does Health Care Reform Affect Disclosure? No Pre existing Condition Exclusions on Children s Coverage <19 Continue to Provide Dependent Coverage until 26 Years of Age New Claims Procedure, Including External Reviews Right to Appeal a Rescission of Coverage Determination

22 How Does Health Care Reform Affect Disclosure? Changes Going into Effect in 2012 and Beyond: Summary of Benefits must be Provided on Enroll & Reenrollment Effective 2012, Uniform Definitions, Cultural Language $1,000 Penalty for Non Compliance per Occurrence or Enrollee Groups with 50+ Employees are Required to Provide Coverage Non Discrimination Prevents Employer Favoring Highest Paid

23 What Laws Are Required for Disclosure? Examples: MHPAEA Mental Health Parity and Addiction Equity Act Welfare Benefit Plans WRAP SPD CHIPRA Children s Health Insurance Program Reauthorization Act GINA Genetic Information Non Discrimination Act Michelle s Law Extension of Coverage for Full time Students with Medical Illness PPACA Patient Protection and Affordable Care Act

24 What is the Legal Process? Compliant vs. Non-Compliant Non-Compliant: Tried in State Court Right to Jury Trial Punitive Damages De Novo Review Compliant: Tried in Federal Court Deferential Review Proof of Disclosure Documents Control ERISA Documents Favor and Protect the Employer

25 Welfare Benefit Plan Plans WRAP SPD WRAP SPD What are the Benefits of a Wrap Plan & Wrap SPD? Establishes a Single Employer Welfare Benefit Plan Brings all Plans into Compliance with ERISA Gives the Employer Enhanced Ability to Amend Plans Meets Health Care Reform Requirements

26 How Can SPDs Be Distributed Electronically? A Master PDF File of Wrap SPD Includes Insurance Certificates Instructions for Safe Harbor Electronic Delivery Notice of Delivery for Computer Accessible (CA) Notice of Delivery for Non Computer Accessible Report to Track Date, Delivery and Receipt

27 Use ERISA Compliance as a Sales Opportunity Steps to: Approach Qualify & Justify Close Existing Clients Explain Health Care Reform Implementation Focus on Health Care Reform as the Main Compliance Vehicle Discuss Added Value of Protection Under ERISA Compliant Documents Explain Cost Savings and Value of Gatekeeper System Via Wrap SPD Approach Schedule Benefits Consultation Perform Annual Renewal Prospective Clients Raise Questions Based on Low Compliance Rates: 55% of Form 5500 Less with SPDs Assess Familiarity with Laws and Penalties/Liabilities for Non Compliance Review History & Any Plan Documents to Confirm Added Protection Needed Present Opportunity Prior to Renewal May Offer to Pay in Some States Identify Your Client s Potential Liabilities and Provide an Effective Solution!

28 We re Not In Kansas Anymore! Get Connected & Thrive in a Changing Market Place: Partner with Resources that Allow You to Be a Solutions Provider Provide Value Added Services to Differentiate from Competition Protect You and Your Clients from Potential Liability The Winds of Change are Upon Us. Now is the Time to Change the Course!

29 ERISA COMPLIANT HEALTH & WELFARE PLAN DOCUMENTS Wrap-Tight SM Plan Documents Summary Plan Descriptions (SPD) Form 5500s Summary of Material Modifications (SMM) Summary Annual Reports (SAR) 990 Hammond Drive, Suite 800, Atlanta, Ga., toll free: , local