Anatomy of an Employee Benefit Claim American Bar Association Section of Labor and Employment Law Conference November 5, 2010

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1 1 Anatomy of an Employee Benefit Claim American Bar Association Section of Labor and Employment Law Conference November 5, 2010 Denise M. Clark, Esq. Steve Haugen, Esq. Kimberly Jones, Esq Hisham M. Amin, Esq. 2 DENISE M. CLARK, Esq. The Law Office of Denise M. Clark, PLLC Washington, DC 3 The Employee Retirement Income Security Act--ERISA ERISA governs any plan, fund, or program which was heretofore or hereafter established or maintained by an employer for the purpose of providing benefits to employees. ERISA does not cover government plans, church plans, plans covering the self-insured, unfunded excess plans, or plans maintained to comply with unemployment, workers compensation, or disability insurance laws. 1

2 4 Overview of ERISA Title I Protection of Employee rights the Labor Title Title II Amendments to the Internal Revenue Code Title III Administrative and Judicial Title Title IV Establishment of Pension Plan Termination Insurance Program 5 Overview of ERISA Three Agencies Have Been Charged With Governmental Oversight of ERISA Plans: Department of Labor Internal Revenue Service Pension Benefit Guaranty Corporation 6 THERE MUST BE A PLAN The courts generally have utilized a four-part test to determine whether the statutory plan, fund or program requirement has been met a plan exists if, from the surrounding circumstances, a reasonable person could ascertain the intended (1) benefits, (2) beneficiaries, (3) source of financing, and (4) procedures for obtaining benefits. Donovan v. Dillingham, 688 F.2d 1367, 1373 (11th Cir. 1982) 2

3 7 The Employer Must Sponsor The Plan To be an employee benefit plan subject to ERISA, the plan, fund or program must also be established or maintained by an employer or employee organization. ERISA 3(1) and 3(2)(A), 29 U.S.C. 1002(1) and 1002(2)(A). This requirement requires a minimum level of employer involvement (or involvement effectuated through a third party) for an arrangement to constitute an ERISA plan. 8 Plan is Established to Provide Benefits to Employees To be an ERISA-covered employee benefits plan, the plan must provide benefits to employees or their beneficiaries. ERISA 3(1), 3(2)(A) and 3(7), 29 U.S.C. 1002(1), 1002(2)(A), and 1002(7). No definition of employee under ERISA. Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 327 (1992) test for employee status 9 There Must be an Administrative Process To constitute an employee benefit plan subject to ERISA, the arrangement generally must involve ongoing administrative responsibility to determine eligibility, calculate benefit levels, and monitor funding for benefit payments. Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11 (1987) a single event/payment does not constitute an administrative scheme. 3

4 10 Retirement Benefit Plans Governed by ERISA ERISA Section 3(2) defines an employee pension benefit plan as any plan, fund or program established or maintained by an employer, employee organization, or both, providing retirement income to employees, or resulting in a deferral of income by employees for periods extending to the termination of covered employment and beyond, regardless of the method of calculating the benefit under the plan or the method of distributing benefits from the plan. 11 TYPES OF PENSION PLANS A defined benefit plan promises a defined monthly benefit at retirement, such as 3 percent of final pay per year of service. A plan s actuary calculates how much money employers must contribute in order to fund the plan s promised benefits. Because benefits must be definitely determinable, a defined benefit plan must provide benefits, whether or not an employer meets its obligation to pay contributions under a collective bargaining agreement. 12 TYPES OF PENSION PLANS A defined contribution plan sets up an individual account for each plan participant. Defined contribution plans pay benefits based solely on the amounts contributed to the employee s account plus any income, earnings, expenses, losses, or forfeitures, which are allocated to the employee s account. 4

5 13 Welfare Benefit Plans Governed by ERISA ERISA Section 3(1) defines an employee welfare benefit plan as any plan, fund or program established or maintained by an employer, employee organization, or both, providing participants and beneficiaries (through insurance, or otherwise) medical, surgical or hospital care; or, benefits in the event of sickness, accident, disability, death, unemployment; or, vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds or prepaid legal services. 14 Welfare Benefit Plans Governed by ERISA ERISA governs funded plans subject to trust arrangements; May be insured or self-insured; Funding arrangements include VEBAs OR 401(h) accounts; Many single-employer plans are unfunded, and are instead paid out of the general assets of the employer) Multiemployer plans generally provide benefits through a trust arrangement 15 Welfare Plans Not Governed by ERISA DOL has excluded certain payroll practices from the definition of a welfare plan (29 CFR (b)) Overtime pay, shift premiums, holiday premiums, weekend premiums Short term disability paid out of employer s general assets Vacation and holidays paid out of general assets Military duty, jury service, training, sabbatical 5

6 16 ERISA PLAYERS Plan Sponsor Employer, Employee Organization, Association, Joint Board of Trustees Plan Administrator Trustees Participants Dependents Insurance Companies 17 ERISA PLAYERS Managed Care Organizations and HMOs Record-keepers Custodians Investment Managers Investment Advisors 18 ERISA PLAYERS Who Is A Fiduciary? ERISA 3(21) adopts a functional test: A person is a fiduciary to the extent that the person: (1) exercises any discretion or control over the management of the plan or the management or disposition of its assets; 6

7 19 ERISA PLAYERS A Fiduciary (2) renders investment advice regarding plan assets for a fee or other direct or indirect compensation, or has the authority or responsibility to do so, or (3) has any discretionary authority or control over plan administration 20 ERISA PLAYERS Other Fiduciaries Plan administrator Trustee Service providers are generally not fiduciaries, but may become fiduciaries if they agree to be fiduciaries or if they exercise discretion or control 21 FIDUCIARY FUNCTIONS Fiduciary Duties ( 404) Solely in the interest of participants and beneficiaries Exclusive purpose of providing benefits and paying for reasonable administrative expenses Prudent person rule Diversification of assets In accordance with plan documents 7

8 22 FIDUCIARY FUNCTIONS Prudent Person Rule Duty of Care Fiduciaries must discharge their duties with the care, skill, prudence and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims. 23 FIDUCIARY FUNCTIONS Prudent Person Rule Duty of Care Allocating fiduciary duties among fiduciaries Delegating fiduciary duties Selecting and hiring experts Duty to monitor 24 FIDUCIARY FUNCTIONS Prudent Person Rule Duty of Care Substantive prudence: judgment based on facts at time of decision, not retrospectively Procedural prudence: process by which fiduciary reached decision, not results 8

9 25 KEY PLAN DOCUMENTS ERISA REPORTING AND DISCLOSURE REQUIREMENTS All Plans Must File Annual Report (Form 5500) Summary Annual Report (SAR) Summary Plan Description (SPD) Summary of Material Modification (SMM) Access to Plan Documents ( 104(b)) upon written request, furnish copy of plan documents, including other instruments under which the plan is established or maintained 26 KEY PLAN DOCUMENTS SUMMARY PLAN DESCRIPTION Information that must be included: Name/address/phone of plan administrator Description of benefits Procedures to present claim for benefits Procedures to challenge or appeal denial of benefits Information about nearby DOL offices in which participants may obtain assistance Remedies available 27 ERISA ENFORCEMENT SCHEME Criminal penalties 29 USC 1131 ( 501) Civil enforcement 29 USC 1132 ( 502) Claims procedure 29 USC 1133 ( 503) Interference with protected rights 29 USC 1140 ( 510) Preemption of state law 29 USC 1144 ( 514) 9

10 28 STEVEN HAUGEN, Esq. United States Department of Labor Level 1 General assistance Website ( EBSA (toll free #) Brochures / publications Regional Office Customer Service Units Chicago = Level 1 General assistance FY 2010 (thru 8/31/10) 21,055 Inquiries 1,013 COBRA Appeals (ARRA) Recovered $6.6 Million in benefits 111 Enforcement Referrals 10

11 Participant Assistance Help Ps & Bs understand (in general) Governing documents How plans operate How plans are funded How plans are administered Claims / Appeals procedures Governing Documents Sponsor decides benefits to provide & to whom Pension / Retirement 401(k) Plan Profit Sharing Employee Stock Ownership Plan Traditional Annuity Plan (defined benefit plan) Welfare Health, dental, vision Death, disability, unemployment Vacation, apprenticeship & training Prepaid legal & more Governing Documents Eligibility Participants Covered employee categories Waiting periods Mandatory vs. optional Beneficiaries Dependents / relatives / surviving spouses Reward all employees? Current vs. former Full-time vs. part-time Long-term EEs only All locations 11

12 Plan Operations Trust Fund Insured Self-funded Named Fiduciary Other Fiduciaries Service Providers Plan Operations Trustee / Insurance Company Investment Manager Recordkeeper Contributions, investments, service Claims processing Plan Funding Pre-funding vs. pay as you go Employer vs. employee contributions Deductibles (e.g., $1,000 / person / year) Co-pays (e.g., $20 / office visit) Cost sharing (e.g., 20% of charges) 12

13 Plan Administration Trustees Committee(s) Administrator Third party administrator Contract administrator Salaried administrator Claims / Appeals Pension plans Largely one-time issue Death & disability plans Once / infrequent Health, dental, vision Frequent Claims / Appeals Who will handle? Insured insurance company handles Trusteed / self-insured Insurance company (ASO) Professional Administrator (TPA) Benefits Committee In-house Administrator / staff 13

14 Claims / Appeals Governing documents Plan Document (legal / official document) Kept in plan office Summary Plan Description (SPD) Booklet that summarizes plan rules Distributed to Ps & Bs Must follow, unless (ERISA 404(a)(1)(D)) Must describe how to file claim / appeals Claims / Appeals ERISA Claims Procedure ERISA 503 (& 715) 29 CFR New Affordable Care 29 CFR Timeframes Dependent upon type of claim Notice of denial content requirements Basis for denial Relevant plan provisions Appeal rights Claims / Appeals Find your SPD Verify eligibility Verify covered service (health, etc.) Pre-authorization obtained (if required) Follow claims procedure Contact plan with any questions Keep copies of documents submitted Keep record of contacts with plan reps 14

15 Level 2 Benefit assistance Specific Issues / Problems Information Benefits processed / paid Filing appeals Information P / B having difficulty getting info Explain rights Assess entitlement May contact plan to assist Benefits processed / paid P / B having difficulty getting help Explain rights Assess entitlement May contact plan to assist 15

16 Filing Appeal Benefits Denied Explain rights Assess entitlement May contact plan to assist Level 3 Investigative Consideration What is problem? Communication vs. missing $$$ How widespread is problem? Larger problem >> more interest Who is responsible? vendor vs. fiduciary Level 3 Investigative Consideration Single vs. Multiple Complaints Nature of Complaint Employer in financial difficulty Employee contributions mishandled Questionable investments Non-payment of claims 16

17 Level 3 Investigative Consideration CSU referrals to Enforcement Unsuccessful mediation efforts Problem is larger than individual claim Missing $$$ Plan Sponsor in financial difficulty Plans often at risk / take backseat Criminal potential e.g., theft / embezzlement Investigation vs. Inquiry Inquiry Focuses on particular issue Handled by Customer Service staff Informal resolution Investigation Overall review of Plan operations Handled by Investigative staff Voluntary Compliance vs. Litigation Helpful Hints Know Plan & ERISA Provisions Follow Plan & ERISA Rules Take advantage of EBSA website Take advantage of EBSA publications 17

18 Helpful Hints Have a Good Process for handling SPD & other disclosures Information requests P & B questions Communicate Communicate Communicate Helpful Hints If it s bad news for P / B, explain why Point to Plan / SPD rules Keep it simple Use understandable language Helpful Hints Deal with lowest level Level #1 = P / B Level #1 = P / B Level #2 = EBSA Customer Service Level #3 = EBSA Investigative staff Level #4 = DOL Litigators 18

19 55 KIMBERLY JONES, Esq. Daley, DeBofsky & Bryant Chicago, IL 56 EXHAUSTION OF CLAIMS AND APPEALS PROCEDURE Denial letter is trigger for claim appeal Exhaustion of claim appeals generally mandatory Exceptions - Futility; - Denial of meaningful access 57 Benefit Claims Process: The Rules in a Nutshell ERISA Section 503 grants the right to a full and fair review of a claim denial Review process has both procedural and substantive considerations DOL Regulation (29 C.F.R. Section ) fundamentally changes ERISA s claims and appeals process with respect to health benefits. 19

20 58 General Rule 29 C.F.R (g) -- Every employee benefit plan must: Provide adequate notice in writing when claim is denied; Set forth the specific reasons for such denial, written in a manner calculated to be understood by the participant; and Afford a reasonable opportunity for a full and fair review by the appropriate named fiduciary of the denial decision. 59 Key Issues Continued Communication of results; What must be reviewed on appeal; Administrative record New information Participant s right to obtain claim file Exhaustion of administrative appeals; Right to sue. 60 INITIAL DETERMINATIONS Initial review of claim 29 C.F.R (f)-90 days to review (90-day extension)-in general Disability-45 days; plus two 30 day extensions-29 C.F.R (f)(3) Health claims-urgent care claims/preservice/post-service 20

21 61 Time in which to decide claims and appeals depends on the nature of the claim Is it an urgent claim; preservice claim; or a postservice claim? 62 What is the Difference? Urgent-Care Claim Claim for benefits that if not adjudicated very quickly, could result in damage to Participant s or Beneficiary s health; OR any claim so designated by the Participant s or Beneficiary s physician. i Pre-Service Claim Claim that involves access to medical care (e.g., precertification of MRI). Post-Service Claim Claim purely for the payment or reimbursement for medical care that has already been received (e.g., bill for doctor s office visit). 63 ACCELERATED TIMES FOR HEALTH CLAIMS 21

22 64 Urgent-Care Claim-29 C.F.R (m)(1) Claim: Urgent-care claims must be decided within 72 hours of receipt (24-hour extension available if additional information is needed. The claimant has 48 hours to submit additional information). Appeal: Appeals of urgent-care claims denials must be adjudicated within 72 hours. 65 Pre-Service Claim Claim: Pre-service claims must be decided within 15 days (15-day extension available). Appeal: Appeals of denied pre-service claims must be adjudicated within 30 days. If 2 levels of appeal, both appeals must be adjudicated within 30 days). 66 Post-Service Claim Claim: Post-service claims must be decided within 30 days (15-day extension available). Appeal: Appeals of denied post-service claims must be adjudicated within 60 days. If 2 levels of appeal, both levels must be adjudicated within 60 days). 22

23 67 One other type of claim: Concurrent Care Decisions Any termination or reduction in previously approved healthcare benefits is treated as an adverse benefit determination. Plans must provide notice of a proposed termination or reduction sufficiently in advance of such termination or reduction. Claimants have the right to appeal before the termination or reduction takes effect. 68 DISABILITY CLAIMS Claim: Appeal: Disability claims (e.g., long-term disability benefits; disability pension benefits) must be decided within 45 days of receipt (two 30-day extensions are available). Appeals of denied disability claims must be adjudicated within 45 days of receipt (45-day extension available). 69 GENERAL RULES FOR APPEALS FULL & FAIR REVIEW Claimants appealing denied claims must have: Opportunity to submit additional information; Opportunity to review claim file and to obtain information relevant (29 C.F.R (m)(8)to claim, upon request no charge; An appeal process under which all claimantsubmitted information is reviewed and considered. 23

24 70 HEALTH AND DISABILITY APPEALS Claimant must have at least 180 days to appeal denied claims; Person adjudicating the appeal must be different than the person who initially denied the claim, and not subordinate to the initial reviewer; No deference to initial review must be a de novo review. 71 Healthcare professional must be consulted on medical judgments, prior to denying appeal; Professional must be specialist in appropriate discipline Medical and/or vocational experts must be disclosed to claimants, if appeal is denied; Plans may not require more than two levels of appeal. Group Health or Disability Appeal Denials must detail: Internal rules, guidelines, protocols, or other similar criteria relied upon in denying appeal; Explanation of any Medical necessity/experimental treatment exclusions, including: Explanation of scientific or clinical judgment Prescribed statement regarding other voluntary alternative dispute resolution options

25 73 Consequences of Failure to Comply with Regulations 29 C.F.R (l): Failure to establish and follow reasonable claims procedures. In the case of the failure of a plan to establish s or follow o claims procedures es consistent ste t with the requirements of this section, a claimant shall be deemed to have exhausted the administrative remedies available under the plan and shall be entitled to pursue any available remedies under section 502(a) of the Act on the basis that the plan has failed to provide a reasonable claims procedure that would yield a decision on the merits of the claim. 74 Effect of Late Appeal Decision Failure to conduct timely appeal can forfeit right to deferential review Rasenack v. AIG Life Ins. Co., 585 F.3d 1311 (10 th Cir. 2009) Nichols v Seman v. FMC Corp. Ret. Plan for Hourly Emples., 334 F.3d 728 (8th Cir. 2003) But in Finley v. Hewlett-Packard Co. Emple. Benefits Org. Income Prot. Plan, 379 F.3d 1168 (10th Cir. 2004) No loss of discretion if no meaningful evidence submitted on appeal 75 Late Appeal Submissions Unum Life Ins. Co. v. Ward, 119 S.Ct (1999) notice-prejudice rule deadlines are minimums; may allow late claim filings. 25

26 76 Disclosure of Evidence Must disclose all relevant evidence Russo v Hartford Life and Acc. Ins. Co.,, 2002 U.S. Dist. LEXIS (S.D. Cal. Jan. 31, 2002) Denying a claimant access to information that is generated after an initial denial, but is subsequently relied upon by the administrator in reviewing the claim on appeal, effectively denies the claimant with a full and fair review Hamall-Desai v. Fortis Benefits Ins. Co., 370 F. Supp. 2d 1283 (N.D. Ga. 2004) 77 HISHAM M. AMIN, Esq. Groom Law Group, Chartered Washington, DC 78 MetLife v. Glenn: The Sea Change in Litigation Under 29 U.S.C. 1132(a)(1)(B) 502(a)(1)(B)/ 1132(a)(1)(B) Allows a participant or beneficiary to bring suit to recover benefits due or enforce rights under the plan 26

27 79 MetLife v. Glenn: The Sea Change in Litigation Under 29 U.S.C. 1132(a)(1)(B) Two standards of review applied by courts when adjudicating a benefits claim: If the plan confers discretion upon the administrator, then abuse of discretion/arbitrary and capricious review applies. Otherwise, de novo review applies. 80 MetLife v. Glenn: What is it About? Glenn concerns cases reviewed under the abuse of discretion standard. When the entity that is responsible for paying claims also decides if the benefits should be paid, it operates under a financial conflict of interest that courts must consider as a factor in determining whether the administrator abused its discretion. 81 MetLife v. Glenn: What s the Big Deal? Holding of Glenn is not revolutionary. Now that conflict of interest is a mandatory aspect of the analysis (when the claims administrator also pays claims), we are seeing two broad issues: Judges are more heavily scrutinizing claims decisions. As deference to the administrator decreases, importance of the judge increases. Plaintiffs attorneys are advancing Glenn to support broad discovery to ferret out conflicts of interests. 27

28 82 MetLife v. Glenn: What s the Big Deal? One court s view of possible areas of discovery: Claim determination procedures, including the criteria used in making decisions. Statistical information regarding the number of claimants seeking long term disability benefits with certain diagnoses and the approval rate of such claims. Steps taken to reduce potential bias of claims personnel, promote accuracy, wall off claims administrators from those interested in firm finances, and institute management checks that penalize inaccurate decisions. 83 MetLife v. Glenn: What s the Big Deal? The level of experience of claims personnel, the standards for claim staff accountability, and whether there were separate compliance/accountability functions. The criteria i for the selection of individuals id to conduct peer reviews, independent medical reviews, and functional capacity evaluations. Policies and procedures relating to SSA disability benefit determinations. Communications between the insurer and the companies that provided the insurer with reviewing doctors, and between those companies and the reviewing doctors. 84 MetLife v. Glenn: What s the Big Deal? Statistical information concerning the number of disability claims each doctor evaluated on behalf of the insurer and the number of times those doctors concluded that a claimant was or was not disabled. Information regarding claims reserves. Information regarding all rules and procedures relating to compensation, bonuses, raises, evaluations, promotions and promotional opportunities and/or incentives applicable to benefits personnel relevant to deciding the claim. 28

29 85 The Basic Questions Remain the Same. Was the claims decision reasonable? Would it withstand de novo review? Was all the evidence considered? Were all of claimant s disabilities/disputes addressed? Does the decision make sense from a common sense perspective? Does the decision rely upon evidence taken out of context? Did the administrator weigh the evidence reasonably? Breach of Fiduciary Duty Lawsuits ERISA 502(a)(2) 87 ERISA 502(a)(2) 502(a)(2) permits a plan participant, beneficiary or fiduciary, or the Secretary of Labor, to sue for "appropriate relief under ERISA 409." 502(a)(2) suits are brought to restore the plan to the position it would have been had the fiduciary breach not occurred - in contrast, in suits under 502(a)(1)(B), the plaintiff seeks payment from the plan. 29

30 88 ERISA 409(a) 409(a), in turn, provides that a breaching fiduciary is personally liable to make good to the plan any losses to the plan resulting from the breach and restore to the plan any profits that have been made though use of assets of the plan by the fiduciary, and is liable for any equitable or remedial relief that the court may deem appropriate including removal of fiduciaries. 89 ERISA 409(a) cont. Thus, 409(a) provides that: A fiduciary Who breaches any of the responsibilities or obligations imposed upon fiduciaries under Title I of ERISA Incurs personal liability 90 Who is a fiduciary? In order to incur liability under 502(a)(2), an individual or entity must be an ERISA fiduciary. Under Section 402(a), every plan has a named fiduciary established in the plan document. In addition to named fiduciaries, individuals and entities can become functional fiduciaries. 30

31 91 Who is a fiduciary? cont. Under Section 3(21)(A), an individual or entity is a functional fiduciary with respect to a plan to the extent the individual or entity: (i)exercises any discretionary authority or discretionary control regarding management of the plan or management or disposition iti of plan assets; (ii)gives investment advice for a fee or other compensation with respect to plan assets (or has any authority or responsibility to do so); or (iii)has discretionary authority or responsibility in the administration of the plan. 92 Underlying Liability for Breach of Duties Imposed by Title I of ERISA Breaches of ERISA 404(a)(1) - Failure to discharge fiduciary duties with respect to a plan solely in the interest of the participants and beneficiaries: 93 Underlying Liability for Breach of Duties Imposed by Title I of ERISA cont. (A) For the exclusive purpose of providing benefits to participants/beneficiaries and defraying reasonable expenses of plan administration; (B) With the care, skill, prudence and diligence of a prudent man under the circumstances; (C) By diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and (D) In accordance with plan documents. 31

32 94 Remedies ERISA 409(a) provides for three types of remedies: Restoration to the plan of the amount of any losses the plan may have incurred as a result of the fiduciary breach; Disgorgement by the fiduciary of any profits that resulted from the breach and restoration of these profits to the plan; and Any other equitable or remedial relief that the court decides is appropriate. Breach of Fiduciary Duty Lawsuits ERISA 502(a)(3) 96 The Statutory Text ERISA 502(a)(3): A civil action may be brought by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan 32

33 97 Individual Remedy Circuit split as to whether 502(a)(3) provided an individual remedy. Split resolved by Varity Corp. v. Howe, 516 U.S. 489 (1996). Holding: 502(a)(3) authorizes lawsuits for individualized equitable relief 98 Available Remedies (A) to enjoin any act or practice which violates any provision of this title or the terms of the plan Both preliminary and permanent injunctive relief are available Example: enjoining defendants from serving as fiduciaries 99 Available Remedies, continued (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan So the relief sought must be: appropriate equitable 33

34 100 What Constitutes Equitable Relief Remedies typically available in equity not damages Mertens v. Hewitt Assocs., 508 U.S. 248 (1993) 101 The Question of Restitution Restitution is not always an equitable remedy Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) Not equitable relief because not seeking identifiable funds in the defendant s possession Sereboff v. Mid Atl. Med. Servs., Inc., 547 U.S. 356 (2006) Equitable relief because seeking funds identifiable even without strict tracing 102 QUESTIONS? 34