ALI-ABA Course of Study Fundamentals of Employee Benefits Law March 5-7, 2009 Orlando, Florida TABLE OF CONTENTS

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1 ALI-ABA Course of Study Fundamentals of Employee Benefits Law March 5-7, 2009 Orlando, Florida PROGRAM FACULTY PARTICIPANTS FACULTY BIOGRAPHIES STUDY MATERIALS TABLE OF CONTENTS 1. Overview of ERISA s Legislative and Regulatory Scheme 2. Glossary of Selected ERISA Terms 3. Types of Qualified Retirement Plans Page xi 4. Controlled Group, Affiliated Service Group, and Leased Employee Rules 59 By Cynthia A. Van Bogaert Study Outline 61 Presentation Slides Standards of Eligibility and Minimum Coverage 99 By Michael A. Laing Study Outline 101 Presentation Slides Minimum Standards of Eligibility 131 Presentation Slides Minimum Participation and Coverage Fiduciary Responsibilities Under ERISA 157 Study Outline 159 Sample Notice of Default Investment Option and Procedures Nondiscrimination and Permitted Disparity 211 By Brian W. Berglund Table of Contents 213 Study Outline 215 Presentation Slides The Nuts and Bolts of Discrimination Testing 245 By Brian W. Berglund Table of Contents 247 Study Outline 249 xiii xv vii

2 9. Top-Heavy Rules and Keogh Plans 297 By Cynthia A. Van Bogaert Study Outline 299 Presentation Slides Fundamentals of Vesting Participant Loans By Michael A. Laing COBRA Health Benefit Continuation Coverage Under the New and Old 381 Regulations By Roberta Casper Watson Table of Contents 383 Study Outline Reporting and Disclosure Requirements 567 Study Outline 569 Chart: Selected Reporting and Disclosure Requirements 631 Sample Notice To All Interested Parties Section 401(k) Plans 635 By Brian W. Berglund Table of Contents 637 Study Outline 639 Presentation Slides Taxation of Qualified Plan Distributions and Required Minimum 669 Distributions By Brian W. Berglund Table of Contents 671 Study Outline Terminating the Single Employer Plan Procedures and Issues 709 Study Outline 711 Sample Notice of Intent to Terminate 733 Sample Notice of State Guaranty Association Coverage Securities Law Issues Relating to Employee Benefit Plans 737 By Brian W. Berglund Short Outline 739 Long Outline Employee Benefit Aspects of the Sarbanes-Oxley Act of By Brian W. Berglund Study Outline 795 Model Regulatory Blackout Period Notice 814 viii

3 19. Ethical Issues in Representing Employee Benefit Plans 817 By Cynthia A. Van Bogaert Study Outline 819 Presentation Slides Bankruptcy and Qualified Plans Spousal Rights (Joint and Survivor Benefits, Preretirement Survivor Benefits, and Qualified Domestic Relations Orders (Handout) By Roberta Casper Watson 22. Employer-Sponsored Health Plans Under Non-Privacy Health Plan Provisions of HIPAA (Handout) By Robert Casper Watson and Douglass A. Farnsworth 23. Legal Update: Key Provisions of Stimulus Bill and CHIP Reenactment Affecting Employer-Sponsored Health Plans (Handout) By Douglass Farnsworth Submitted by Roberta Casper Watson 24. New Federal Laws for Health Plans (Handout) Submitted by Roberta Casper Watson ix

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5 ALI-ABA Course of Study Fundamentals of Employee Benefits Law March 5-7, 2009 Orlando, Florida PROGRAM Thursday, March 5, :30 a.m. Registration WEBCAST SEGMENT A Qualified Plans; Service Group Rules; and Standards of Eligibility 8:30 a.m. Introduction: Overview of Legislative and Regulatory Schemes (including what is an ERISA plan) Ms. Perdue 9:00 a.m. Types of Qualified Retirement Plans (determining what type of plan is right for a client) Ms. Perdue 9:45 a.m. Controlled and Affiliated Service Group Rules Ms. Van Bogaert 10:30 a.m. Networking Break 10:45 a.m. Minimum Standards of Eligibility Mr. Laing 11:15 a.m. Questions and Answers 11:45 a.m. Lunch Break WEBCAST SEGMENT B Coverage; Fiduciary Rules & ERISA; Nondiscrimination and Disparity; and Spousal Rights 1:15 p.m. Minimum Coverage Requirements Mr. Laing 1:45 p.m. Introduction to Fiduciary Responsibility Rules of ERISA Ms. Perdue 2:45 p.m. Networking Break 3:00 p.m. Nondiscrimination and Permitted Disparity Mr. Berglund 4:00 p.m. Spousal Rights (including QJSA/QPSA and QDRO) Ms. Watson 5:00 p.m. Questions and Answers 5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty Friday, March 6, :00 a.m. Networking Session WEBCAST SEGMENT C Top Heavy/Keogh Plans; Vesting, Reporting, and Disclosure Requirements; Plan Loans; and COBRA 8:30 a.m. Review of First Days Topics Ms. Perdue 8:45 a.m. Special Rules for Top Heavy and Keogh Plans Ms. Van Bogaert 9:15 a.m. Minimum Vesting Requirements Ms. Perdue 9:45 a.m. Plan Loans Mr. Laing 10:15 a.m. Networking Break 10:30 a.m. Introduction to the Consolidated Omnibus Budget Reconciliation Act (COBRA) Ms. Watson 11:15 a.m. Reporting and Disclosure Requirements Ms. Perdue 11:45 a.m. Questions and Answers 12:15 p.m. Lunch Break xi

6 WEBCAST SEGMENT D 401(k)s; Distributions; and HIPAA 1:45 p.m. Section 401(k) Plans Mr. Berglund 2:45 p.m. Taxation of Distributions and Required Minimum Distributions Mr. Berglund 3:30 p.m. Networking Break 3:45 p.m. HIPAA Basics (Portability and Discrimination) Ms. Watson 4:30 p.m. Questions and Answers 5:00 p.m. Adjournment for the Day Saturday, March 7, :00 a.m. Networking Session WEBCAST SEGMENT E Intersection with Other Laws 8:30 a.m. Review of Prior Days Topics Ms. Perdue 8:45 a.m. Logistics of Plan Termination Ms. Perdue 9:45 a.m. Securities Laws and ERISA Mr. Berglund 10:15 a.m. Networking Break 10:30 a.m. Ethical Issues in Representing Employee Benefit Plans Ms. Van Bogaert 11:30 a.m. Bankruptcy Laws and Employee Benefits Plans Ms. Perdue 12:00 noon Questions and Answers 12:30 p.m. Adjournment Total 60-minute hours of instruction: 17.25, including one hour of ethics xii

7 ALI-ABA Course of Study Fundamentals of Employee Benefits Law March 5-7, 2009 Orlando, Florida PLANNING CHAIR Pamela D. Perdue, Esquire Summers, Compton, Wells & Hamburg, P.C Ladue Road St. Louis, MO FACULTY Brian W. Berglund, Esquire Bryan Cave LLP One Metropolitan Square Suite North Broadway St. Louis, MO Michael A. Laing, Esquire Taft, Stettinius & Hollister LLP Suite Walnut Street Cincinnati, OH Cynthia A. Van Bogaert, Esquire Boardman, Suhr, Curry & Field LLP Suite South Pinckney Street Madison, WI Roberta Casper Watson, Esquire Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A Barnett Plaza 101 East Kennedy Boulevard Tampa, FL xiii

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9 Planning Chair FACULTY BIOGRAPHIES Pamela D. Perdue, St. Louis, Missouri Summers, Compton, Wells & Hamburg, P.C. B.M., J.D., University of Georgia Adjunct Professor, Washington University School of Law Honors: Best Lawyers In America ( ); Missouri/Kansas Super Lawyers ( ) Memberships: American Law Institute; ALI-ABA (Adviser to Program Subcommittee); American Bar Association (Section of Taxation, Employee Benefits Committee); Missouri Bar Association (Employee Benefits Committee); Bar Association of Metropolitan St.Louis (Former chair, Section on Employee Benefits); Magna Trust Company Bank Advisory Board ( ) Publications: QUALIFIED PLANS: FORMS, NOTICES, AND SUPPLEMENTARY M ATERIALS (ALI-ABA, 2007); QUALIFIED PENSION AND PROFIT SHARING PLANS (Warren, Gorman & Lamont/RIA, 1994 & Annual Updates); 457 ANSWER BOOK (contributing author)(aspen Publishers, Inc.); EMPLOYMENT SEVERANCE ANSWER BOOK (chapter author)(aspen Publishers, Inc.); P LAN TERMINATION ANSWER BOOK (Panel Publishers, 1999); Drafting Plans to Reduce Risk of Loss in Litigation, J. TAX. & EMPLOYEE BENEFITS; Should You Put IRA Assets In Uncommon Investments?, 53 PRAC. LAW. 21 (Dec. 2007); Profit Sharing Plan And Trust Death Beneficiary Designation Form, 13 ALI-ABA EST. PLAN. COURSE M ATERIALS J. (August 2007); EGTRRA and Related Amendments: Issues and Solutions (Part 2), 30 ALI-ABA BUS. L. COURSE M ATERIALS J. 47 (Dec. 2006); What You Should Know About the Pension Protection Act of 2006, 21 PRAC. T AX LAW. 5 (Nov. 2006); EGTRRA and Related Amendments: Issues and Solutions (Part 1), 30 ALI-ABA BUS. L. COURSE M ATERIALS J. 43 (Oct. 2006); Qualified Plan Provisions, Forms and Administration: Avoiding Trouble (with Sample Provisions), 29 ALI-ABA BUS. L. COURSE M ATERIALS J. (June 2005); 10 Tips for Protecting Retirement Plans from Litigation, FIN. EXECUTIVE INT'L (Feb. 28, 2005); A Practical Guide to Helping Clients Select the Right Retirement Plan and Plan Design (Part 2), 49 PRAC. LAW. 11 (Oct. 2003); A Practical Guide to Helping Clients Select the Right Retirement Plan and Plan Design (Part 1), 49 PRAC. LAW. 53 (August 2003); Retirement Plans for Corporate Directors, Consultants, and Other Self-Employed Individuals, 27 ALI-ABA BUS. L. COURSE M ATERIALS J. 5 (April 2003); The New Determination Letter Procedures, 17 PRAC. TAX LAW. 25 (Nov. 2002); The Economic Growth and Tax Relief Reconciliation Act of 2001: Selected Employee Benefit Changes, 15 PRAC. TAX LAW. 51 (Aug. 2001); Paying Costs from Retirement Plans: When and How Much, 47 PRAC. LAW. 11 (July 2001); Anti-Cutback Rules May Not Protect Subsidized Early Retirement on Sale of Employer, J. T AX N OF EMPLOYEE BENEFITS (March/April 1996); Satisfying ERISA's Fiduciary Responsibility Requirements in the Wake of Potential Plan Changes, J. PENSION PLAN. & COMPLIANCE (Fall 1996); Satisfying the Retirement Goals of Members While Maintaining a Qualified Plan, GROUP PRAC. J. (vol. 43, Sept./Oct. 1994); J. T AX N OF EMPLOYEE BENEFITS (Editorial Advisory Board); J. COMPENSATION AND BENEFITS (Editorial Advisory Board); J. PENSION PLAN. AND xv

10 COMPLIANCE (Editorial Advisory Board) Frequent ALI-ABA faculty member and planning chair Faculty Brian W. Berglund, St. Louis, Missouri Bryan Cave LLP B.A., Carleton College; J.D. Washington University Adjunct Professor, Washington University School of Law ( ) Fellow, American College of Employee Benefits Counsel Honors: 2007 Missouri/Kansas Super Lawyers Employee Benefits/ERISA; Best Lawyers in America Employee Benefits Law (Woodward/White Inc., 2008) Memberships: American Bar Association (Employee Benefits Committee); Bar Association of Metropolitan St. Louis (Employee Benefits Section); Employee Benefits Association of St. Louis (President, 1996); The Youth and Family Center (Board of Directors); Profit Sharing/401 (k) Council of America (Legal & Legislative Committee) Publications: Taxation Of Qualified Plan Distributions And Required Minimum\ Distributions, 31 ALI-ABA B US. L. COURSE M ATERIALS J. (Aug. 2007);Securities Law Issues Relating to Employee Benefit Plans, CORPORAT E COUNSEL S GUIDE TO ERISA (August 2004); Employee Benefit Aspects of the Sarbanes-Oxley Act of 2002, ALI-ABA BUS. L. COURSE M ATERIALS J. (Oct. 2003); The Blackout Rules under the Sarbanes-Oxley Act of 2002, ST. LOUIS BAR J. (Summer 2003); Securities Law Issues Relating to Employee Benefit Plans, in J. PENSION PLAN. & COMPLIANCE (Summer 2001); Valuation of Closely Held Business Guidelines, CALLAGHAN LEGAL CHECKLISTS (March 1998); Choice of Business Entity, M O. BUS. L. Q. (Feb. 1997) Michael A. Laing, Cincinnati, Ohio Taft, Stettinius & Hollister LLP B.S., Auburn University; J.D., University of Alabama; LL.M. (Taxation), University of Florida Honors: Best Lawyers in America Employee Benefits Law (Woodward/White Inc., 2006, 2008); Leading Florida Attorney Fellow, American College of Employee Benefits Counsel Memberships: American Law Institute; American Bar Association (Chair, Subcommittee on 403(b), 457, and EO Issues, Section of Taxation); Southern Federal Tax Institute, Inc. (Trustee); Farrah Law Society Cynthia A. Van Bogaert, Madison, Wisconsin Boardman, Suhr, Curry & Field LLP B.S., J.D., University of Wisconsin; Certificate of Achievement, Public Plan Policy Program in Employee Pensions (International Foundation of Employee Benefit Plans, 2000) Memberships: State of Wisconsin Employee Trust Funds Board ( ); American Bar Association; Wisconsin Bar Association; Dane County Bar Association; xvi

11 Worldwide Employee Benefits Network (National Board Past President, ; President, ; Director-at-Large Midwest, ; President, Madison Chapter, ); Legal Association of Women; International Foundation of Employee Benefit Plans; American Society of Pension Professionals and Actuaries; Society for Human Resource Management Publications Include: VEBA Nondiscrimination Testing: An Obstacle Restricting Health Plan Design Choices, 36 PRAC. TAX LAW. 35 (2006); EBIA WEEKLY (co-author, 2000-present); 401(k) Q&A column in BENEFITSLINK (1999-present); First Union Litigation: Reexamining Plan Merger Protocol, J. TAX N EMPLOYEE BENEFITS (2000); What, Me Worry? Pension Plan Fiduciaries and the Year 2000, J. PENSION BENEFITS (1998); When Recordkeepers Become Fiduciaries, Panel Publishers 401(K) ADVISOR (1998); Fiduciary Concerns for Recordkeepers (and the Plan Sponsors Who Hire Them), J. PENSION BENEFITS (1997); SBA 96 Provides Some ADP/ACP Testing Benefits Without Safe Harbors, J. T AX N EMPLOYEE BENEFITS (1997); Take Another Look at Your Non-Calendar Year Plan, PROFIT SHARING (1995) Roberta Casper Watson, Tampa, Florida Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, P.A. B.A., University of Idaho; J.D., Harvard Law School Fellow, American College of Employee Benefits Counsel Honors: Listed in Best Lawyers in America ( ); Who s Who publications; "Florida Super Lawyers" ( ) Memberships: American Law Institute; ALI-ABA (Adviser, Program Subcommittee); American Bar Association (Past Chair, Joint Committee on Employee Benefits; Tax Section: Chair, Employee Benefits Committee, ; Chair, Subcommittee on Special Insurance Problems of Employee Benefit Plans, ; Health Law Section: Past Chair, Employee Benefits Interest Group); Florida Bar (Chair, Employee Benefits Committee of the Real Property, Probate and Trust Law Section, ; Health Law Committee); Florida West Coast Employee Benefits Council (Past President; Board of Directors, ); Tampa Bay Pension Council; Northside Mental Health Center (Board and past president); Harvard Club of the West Side of Florida (Board); Hillsborough Association of Women Lawyers Publications: COBRA ADVISORY HEALTH BENEFITS CONTINUATION AND PORTABILITY (Co-Editor-in-Chief, ) (Aspen Law and Business); 401(K) ADVISOR (Contributing Editor)(Aspen Publishers); QUICK REFERENCE TO COBRA COMPLIANCE (co-author) (Panel Publishers, 1997); Health Savings Accounts Become an Option for Small Businesses, TAMPA BAY BUS. J. (Feb. 11, 2005); CCH-COBRA G UIDE CONNECTIONS (2000); A PHYSICIAN S GUIDE TO PROFESSIONAL ASSOCIATIONS (Co-Author) (American Medical Association 1989) Frequent ALI-ABA speaker and planning chair xvii

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