Employee Benefits & Executive Compensation Blog

The View from Proskauer on Developments in the World of Employee Benefits, Executive Compensation & ERISA Litigation

Proskauer to Speak at the 65th Annual International Foundation’s Annual Employee Benefits Conference

Proskauer’s Employee Benefits and Executive Compensation Group will be attending and speaking at the 65th Annual Employee Benefits Conference hosted by the International Foundation of Employee Benefit Plans. Robert Projansky, Neal Schelberg and Anthony Cacace will be leading conversations around hot topics in the industry.  We welcome you to join any of our presentations, we look forward to seeing you!

When: Sunday, October 20th – Wednesday October 23rd, pre-conference beginning on Saturday, October 19

Where: The San Diego Convention Center, 111 W Harbor Drive, San Diego, CA 92101

 

Saturday, October 19 – Pre-conference

Time Topic Presenter
8:00 am – 12:00 pm Trustee Responsibility and Legal Environment Robert Projansky

 

Monday, October 21

Time Topic Presenter
9:15 – 10:30 am Fiduciary Refresher Neal Schelberg
1:15 – 2:30 pm Fiduciary Dilemmas Robert Projansky
1:15 – 2:30 pm Tensions in the Boardroom: Issues Confronting Trustees Who Are in Disagreement Anthony Cacace
2:45 – 4:00 pm Working With Your A-Team (for Trustees) Robert Projansky

 

Tuesday, October 22

Time Topic Presenter
7:30 – 8:45 am Working With Your A-Team (for Trustees) Robert Projansky
1:15 – 2:30 pm Fiduciary Dilemmas Robert Projansky
1:15 – 2:30 pm Tensions in the Boardroom: Issues Confronting Trustees Who Are in Disagreement Anthony Cacace

Best Practices in Administering Benefit Claims #2 – Know (and Read) Your SPD

Last week, we kicked off our blog series on the fundamentals of benefit claim administration with an explanation of how important it is to know and read your plan document.  The plan document is the legally binding contract that describes each participant’s rights and benefits under the plan. It also guides the legal obligations and protections for the plan administrator and other plan fiduciaries responsible for plan administration. This week, in part two, we review the importance of the summary plan description. 

Many plan documents are accompanied by a separate summary plan description.  Under ERISA, a summary plan description is precisely what it sounds like—an easy to understand summary of the plan document.  Applicable ERISA regulations explain the specific types of information that must be included in the summary plan description, depending on the type of plan in question.  Case law also has, from time to time, imposed requirements to include additional information.  Separately, based on years of experience, we, as practitioners, have developed recommended language or SPD terms that help clarify plan terms and provide protection against misrepresentations or misunderstandings.  Plan sponsors and fiduciaries are well-advised to periodically read their summary plan descriptions to ensure that they comply with all available guidance, are consistent with the plan documents, and have not inadvertently omitted required information.  Although the plan document, not the summary description, is supposed to “rule” in court, inconsistencies and inadvertent omissions have given rise to costly, unnecessary litigation.  A little bit of effort now, may avoid a large, costly headache later on.

Is it possible that a plan and summary plan description can be one and the same document?  Yes. This is found particularly in the context of health plans or other “welfare benefit plans” under ERISA.  Practitioners regularly discuss with clients questions of format and presentation as part of an overall compliance review.

Finally, remember, a good summary plan description doesn’t do anyone any good if it is not timely and appropriately distributed to plan participants. There are various ways to distribute a summary plan description, including through electronic means.  ERISA regulations should be considered carefully in deciding how to proceed.

Stop by next week when we discuss authorized representatives and assignments.

Best Practices in Administering Benefit Claims #1 – Know (and Read) Your Plan Document

Our ERISA Practice Center blog posts often discuss many complex, and sometimes esoteric, substantive and procedural ERISA issues, as well as related agency guidance and case law.  In this new ten-part blog series, however, we take a step away from the complex and esoteric in order to review some of the fundamentals of benefit claim administration. To that end, we want to share with you our top ten best practices for benefit claim administration.  Let’s dive right into our first best practice:  Know (and read) your plan document.

Know your plan document?  Read your plan document?  Seems simple enough.  Sometimes, however, some of the simplest things can prove to be the most difficult.  ERISA requires every employee benefit plan to be in writing.  The plan document is at the core of ERISA and provides the foundation for the benefits to which participants and beneficiaries are (and are not) entitled.  Plan sponsors and fiduciaries are well-advised to review their plan documents periodically.  Make sure the plan terms are consistent with the plan sponsor’s and plan administrator’s understanding.  This is particularly true when it comes to plan amendments and restatements. Given the number of hands potentially involved in the adoption and implementation of plan amendments and restatements, it is important to make sure nothing has “slipped through the cracks.”  In addition, a periodic review of the plan document can help you find those plan terms that may be ambiguous or have unintended consequences.  Use this review as an opportunity to clarify ambiguous terms to help mitigate risks of litigation.  In short, a relatively small amount of effort now to know and read your plan document may save an enormous amount of effort (and money) later.

Come see us again next week where we’ll take a look at the importance of other plan-related documents.

Final Hardship Distribution Regulations, Part Three: New Disaster Relief and Expanded Sources Available for Hardship Distributions

The IRS recently released final regulations making a number of changes to the rules applicable to hardship distributions from 401(k) and 403(b) plans.  Concluding our three-part series on the final regulations, this blog entry will focus on the following changes to the hardship distribution rules: (1) modifications to the list of safe harbor expenses that qualify for hardship distributions, and (2) additional contribution sources that are now available for hardship distributions.

Modifications to Safe Harbor Expenses: Distributions made for certain “safe harbor” hardship expenses are deemed to be made on account of an immediate and heavy financial need.  The final regulations modify this list of safe harbor expenses as follows:

  • Casualty loss: Employees may receive hardship distributions for expenses to repair damage to a principal residence if the expenses qualify for any type of casualty loss deduction under Code Section 165. As a result of the 2018 Tax Cuts and Jobs Act (TCJA), through 2025, the Section 165 casualty loss deduction by its terms is not available unless the loss is due to a federally-declared disaster.  To avoid this unintended limitation on available hardship distributions, the final regulations modify the casualty loss safe harbor so that it covers casualty loss expenses regardless of whether the damage resulted from a federally-declared disaster.

The revised casualty loss definition may be applied on or after January 1, 2018.  So, if a plan made casualty loss hardship distributions in 2018 without regard to the TCJA changes discussed above, the plan may be amended to apply the revised casualty loss definition effective January 1, 2018.  That way, the plan provisions will conform to the plan’s operations.

  • FEMA-designated disaster: The final regulations add a new “FEMA-designated disaster” safe harbor expense category. Under this new category, hardship distributions may be made for expenses and losses incurred by an employee on account of a FEMA-designated disaster, provided that the employee’s principal residence or principal place of employment at the time of disaster is in the FEMA-designated disaster zone.

Note that prior disaster relief issued by the IRS extended the relief to expenses incurred by an employee’s dependents or qualifying relatives.  The new regulatory safe harbor is narrower in that it only applies to expenses incurred by the employee.  In the regulatory preamble, the IRS indicated that it does not anticipate issuing disaster relief by individualized notice in the future. As a result, plan sponsors cannot necessarily rely on extended deadlines to adopt disaster relief provisions.

Pending further guidance from the IRS, plan sponsors that wish to incorporate the FEMA-designated disaster safe harbor category into a plan’s hardship distribution provisions would need to do so by the end of the plan year in which the amendment is first effective.  Like the revised casualty loss definition, the new FEMA-designated disaster category may be applied on or after January 1, 2018.

  • Primary beneficiary: Incorporating prior guidance issued by the IRS in Notice 2007-7, the final regulations clarify that hardship distributions for qualifying medical, educational, and funeral expenses may be made for expenses incurred by a participant’s “primary beneficiary” (someone named as a beneficiary and who has an unconditional right, upon the employee’s death, to all or part of the employee’s plan account).

Expanded Sources for Hardship Distributions: Expanding the current contribution sources that may be distributed on account of hardship, the final regulations provide that sources available for hardship distributions from 401(k) plans include earnings on elective deferrals, qualified non-elective contributions (QNECs), qualified matching contributions (QMACs), and earnings on QNECs and QMACs, regardless of when contributed or earned.  Plan sponsors are not required to expand the available sources and may continue to limit the amounts available for hardship distributions consistent with the prior rules.

  • Special note for 403(b) plans: Earnings on pre-tax deferrals made to a 403(b) plan continue to be ineligible for hardship distributions. However, QNECs and QMACs in a 403(b) plan that are not held in a custodial account would be eligible for hardship distributions. QNECs and QMACs in a 403(b) plan that are held in a custodial account continue to be ineligible for hardship distributions.

Reminder – Plan Amendment/Operational Changes Required: As summarized in our prior blog entry, individually-designed 401(k) plans that currently permit hardship distributions will likely need to be amended to reflect the final regulations by December 31, 2021.  The amendment deadline for pre-approved 401(k) plans is more complicated and depends on several factors; however, generally, the deadline to make changes for the final regulations would likely be the employer’s tax filing deadline (plus extensions) for 2020.  The amendment deadline for 403(b) plans is similarly complicated.  Although the general remedial amendment deadline for 403(b) plans is March 31, 2020, as a result of recently-released Rev. Proc. 2019-39, both individually-designed and pre-approved 403(b) plans will likely have additional time to adopt plan amendments relating to the final regulations.

In addition to monitoring the plan amendment deadlines summarized above, plan sponsors should also be aware that if a plan currently imposes a six-month suspension of contributions following a hardship distribution, the suspension must be eliminated for hardship distributions on or after January 1, 2020.

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You can read more about the final hardship distribution regulations in our prior blog posts in this series, including a summary of the key changes to the hardship distribution rules, as well as important implementation considerations for plan sponsors.

[Podcast]: ERISA’s Bonding Requirements

proskauer benefits brief podcastIn this episode of the Proskauer Benefits Brief, partner Ira Bogner and senior counsel Adam Scoll discuss ERISA’s bonding requirements. ERISA’s bonding rules generally require that every fiduciary of an ERISA-covered employee benefit plan and every person who handles funds or other property of such a plan be bonded. We will break down these bonding rules and their importance, so be sure to tune in to this episode.


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The Deadline for 403(b) Sponsors to Review Plan Documents for Compliance is Approaching

Section 403(b) plans must be maintained pursuant to a written plan document that meets detailed requirements set forth in IRS regulations.  If a plan contains a defect as to form (e.g., a provision does not comply with the regulations or a required provision is missing), the plan can be at risk for losing its qualification for favorable tax treatment.  The IRS allows a “remedial amendment period” to correct form defects in individually designed plans that were timely adopted, but the remedial amendment period ends March 31, 2020 (subject to a short extension for recently incurred plan defects).

It is not uncommon for the IRS to identify possible defects in well-drafted plan documents that were adopted in good faith.  The “remedial amendment period” offers employers an opportunity to review existing language in light of developments over the last several years and to clean up or improve the language retroactively without penalty.

After March 31, 2020, retroactive correction will no longer be permitted outside of the IRS Employee Plans Compliance Resolution System (EPCRS).  Because the March 31, 2020 deadline is not likely to be extended by the IRS, sponsors of individually designed section 403(b) plans are encouraged to review their 403(b) plan documents and consult with their advisers to determine if there are any provisions that should be cleaned up by March 31, 2020.

401(k) Plan Participant Cannot Pursue Claims on Behalf of Plans in Which She Did Not Participate

A federal district court in Ohio concluded that a 401(k) plan participant could assert fiduciary breach and prohibited transaction claims only on behalf of the plan in which she participated, and not on behalf of other plans.  In this case, the plaintiff was a participant in Andrus Wagstaff, PC’s 401(k) plan, and she alleged that the plan’s recordkeeper charged the plan excessive recordkeeping fees.  The plaintiff sought to certify two classes:  (1) a plaintiff class, represented by plaintiff, consisting of all participants in 401(k) plans that had similar recordkeeping agreements with Nationwide; and (2) a defendant class, represented by Andrus Wagstaff, PC, of all plan sponsors of 401(k) plans that had similar agreements with Nationwide.  Before considering whether plaintiff’s putative classes satisfied Rule 23, the district court addressed the threshold issue of whether plaintiff had standing to represent and/or sue the putative classes.  The court found that plaintiff lacked standing to sue each of the allegedly thousands of similarly situated 401(k) plan sponsors because each plan had different agreements with Nationwide and therefore her alleged injury, i.e., excessive fees, was not traceable to one shared contract.  The court then concluded that plaintiff could only assert class claims on behalf of the Andrus Wagstaff, PC’s 401(k) plan in which she participated.  The case is Brown v. Nationwide Life Insurance, No. 2:17-cv-558, 2019 WL 4543538 (S.D. Ohio Sept. 19, 2019).

Ninth Circuit Enforces Hawaii Anti-Reimbursement Statutes Against Insured Plan

ERISA health care plans typically include reimbursement and subrogation clauses, which give plans a right to reimbursement of medical expenses paid on behalf of a beneficiary where the injury is caused by a third party.  While such provisions are common in ERISA health care plans, they sometimes conflict with state laws that prohibit plans and insurers from seeking reimbursement.  A recent decision from the Ninth Circuit illustrates the interplay between ERISA and state laws prohibiting an insurer’s right to reimbursement for medical bills paid on behalf of a participant.  See Rudel v. Haw. Mgmt. Alliance Ass’n, No. 17-17395, 2019 WL 4283633 (9th Cir. Sept. 11, 2019).  As discussed below, the decision also serves as a good reminder to plan sponsors to ensure that their plans’ reimbursement and subrogation provisions are updated to achieve the desired outcome.

In this case, Randy Rudel, a plan participant, was hit by a car while riding his motorcycle and, as a result, he sustained numerous and severe injuries.  Rudel had health insurance from the Hawaii Medical Alliance Association (HMAA) pursuant to an ERISA plan.  HMAA paid $400,779.70 in medical bills on behalf of Rudel.  Rudel also received $1.5 million in a tort settlement for “general damages” related to the injury.  The damages included medical expenses and damages for emotional distress, but did not include special damages that would “duplicate medical payments, no-fault payments, wage loss, [or] temporary disability benefits.”

HMAA subsequently sought reimbursement of the medical bills it paid based on a plan provision that gave HMAA the “right to be reimbursed for any benefits [it] provide[s], from any recovery received from . . . any third party or other source of recovery including general damages from third-party settlements.”  Rudel refused to reimburse the plan and sued in state court based on two Hawaii statutes that prohibited reimbursement for general damages from third-party settlements.

HMAA removed the case to federal court in Hawaii, arguing that ERISA preempted the Hawaii anti-reimbursement statutes.  Subject to certain exceptions, ERISA § 514 provides that ERISA supersedes all state laws insofar as they “relate to” any employee benefit plan.  An exception applies for state laws that regulate insurance, banking, or securities—commonly referred to as the “savings clause.”  Rudel sought to move the case back to state court, arguing that his claim was not preempted because the Hawaii statutes were protected by the savings clause.

The Ninth Circuit held that the Hawaii statutes were saved from ERISA preemption and that HMAA had no right to reimbursement based on the statutes.  In so holding, the Court first determined that Rudel’s state law claims were completely preempted for purposes of jurisdiction under ERISA § 502(a) because his claim was one to clarify his rights to benefits under the plan.  This meant that the case could stay in federal court rather than being remanded to state court.  Next, the Court ruled that the Hawaii statutes were saved from preemption because they were directed toward entities engaged in insurance and substantially affected the risk pooling arrangement between the insurer and the insured.  In other words, the Hawaii statutes regulate the extent to which insurers may limit coverage and recover certain types of reimbursement and thus impact the eventual net value of any payment made to a plan member and create more risk for insurers.

Proskauer’s Perspective:  While the Ninth Circuit’s decision reminds us that fully-insured plans have to comply with state insurance laws, including anti-reimbursement statutes, it should not be forgotten that state insurance laws apply only to fully-insured plans.  ERISA’s broad preemption provision continues to apply for self-insured plans.  On the topic of plan reimbursement and subrogation provisions, plan sponsors should consider periodically reviewing their plans’ reimbursement and subrogation provisions to ensure that they reflect the sponsor’s intention in terms of the types of payments subject to recoupment, the type of legal interest created, and the type of funds subject to reimbursement.  Because such provisions affect injured beneficiaries’ recoveries, they are hotly contested.  Accordingly, plan sponsors will want to ensure that their plan provisions are up to date.

Final Hardship Distribution Regulations, Part Two: Implementation Considerations

As discussed in our prior blog entry, the IRS recently released final regulations making a number of significant changes to the rules applicable to hardship distributions from 401(k) and 403(b) plans.  As part of our continuing series on these final regulations, this blog entry will focus on two specific issues: (1) the elimination of the six-month suspension of contributions following a hardship distribution; and (2) the revised standard used to determine whether a hardship distribution is necessary to meet the financial need.

Elimination of Six-Month Suspension: Under the prior safe harbor hardship distribution standard, employees who took hardship distributions were prohibited from making contributions for at least six months.  The final regulations eliminate this prohibition, meaning that plans cannot apply this contribution suspension for hardship distributions from 401(k) and 403(b) plans made on or after January 1, 2020.

  • Applicability dates. Although plans cannot apply the six-month suspension on or after January 1, 2020, plan sponsors may opt to remove the six-month suspension earlier than the required date.  Plan sponsors should coordinate with their record-keeper and/or third-party administrator to confirm that their desired applicability date is consistent with operational capacities and will not incur additional service charges.
  • Nonqualified plans. In response to the proposed regulations, many practitioners had questioned whether nonqualified plans could continue to impose suspensions of contributions following an employee’s hardship distribution from a 401(k) or 403(b) plan. The regulatory preamble confirms that the prohibition on suspension of contributions applies only to a qualified plan, 403(b) plan, and most 457(b) plans.  Plans subject to section 409A may retain existing suspension provisions or, to the extent consistent with section 409A, may be amended to remove suspension provisions.
  • Safe harbor 401(k) plans. Safe harbor 401(k) plans are required to issue certain initial and annual notices. These notices must include a description of the withdrawal provisions applicable to plan contributions.  If a plan’s existing safe harbor notices describe the prior rules that applied to hardship distributions (such as the six-month suspension of contributions), the notices should be updated to reflect the new rules.  Employees should then be provided with an updated safe harbor notice and be given a reasonable opportunity to change existing contribution elections.

Revised Standard for Determining Necessity of Hardship Distribution:  Under the prior regulations, a hardship distribution was only treated as satisfying an immediate and heavy financial need if there were no alternative means of satisfying the need, as determined under the facts and circumstances. The final regulations eliminate the facts and circumstances analysis in favor of a general standard providing that the distribution is not deemed necessary to satisfy the financial need unless all of the following requirements are satisfied:

  • The employee has obtained all other currently available, non-hardship distributions under plans maintained by the employer (including both qualified and nonqualified plans).
  • The employee represents to the plan administrator in writing that the employee has insufficient cash or other liquid assets that are “reasonably available” to satisfy the financial need. (The regulatory preamble confirms that this representation may be made by telephone, provided it is recorded.)
  • The plan administrator does not have “actual” knowledge that is contrary to the employee’s representation. (The plan administrator is not required to inquire into the employee’s financial condition for purposes of this rule.)

The regulatory preamble confirms that ESOP dividends that have been paid to the plan and that are available for the employee to elect to receive in cash are generally considered “available” plan distributions that must be taken prior to a hardship distribution.  Extending its prior guidance in IRS Notice 2002-2, the IRS confirmed that if an employee has made an irrevocable election to reinvest ESOP dividends and then requests a hardship distribution after that dividend reinvestment election has become effective, any ESOP dividends paid while the irrevocable election is in place are not considered “available” distributions.  Further guidance about the extent to which non-irrevocable ESOP dividend reinvestment elections should be overridden before making a hardship distribution would be helpful. In the meantime, plan administrators will need to consider how to determine whether ESOP dividends should be taken into account when a hardship distribution is being approved.

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Stay tuned for our next blog entry, which will focus on the new FEMA disaster hardship event (including its potential impact on future IRS individualized disaster relief) and modified casualty loss definition, as well as the new contribution sources available for hardship distributions.

Final Hardship Distribution Regulations, Part One: Key Changes and Deadlines for Plan Sponsors

Last week, the Department of Treasury and the IRS issued final regulations regarding hardship distributions from 401(k) and 403(b) plans.  The final regulations respond to comments based on earlier proposed regulations and make a number of significant changes to the existing IRS rules that apply to hardship distributions.

Given the detailed material in the regulatory preamble as well as the final regulations themselves, we intend to release a series of blog entries analyzing the new rules for hardship distributions.  Below is a summary of the issues raised in the final regulations that we will address in more detail in upcoming blog entries:

  • Plan Amendments/Plan Action Required: Individually-designed 401(k) plans that currently permit hardship distributions will likely need to be amended to reflect the final regulations by December 31, 2021 – but operational changes will be needed to comply with the new regulations by January 1, 2020. (Individually-designed 403(b) plans and pre-approved 401(k) and/or 403(b) plans might have an earlier amendment deadline.) Plan sponsors that previously took action in response to the proposed regulations should review prior plan amendments and administrative changes to confirm operational and plan document compliance with the final regulations.
  • Elimination of Six-Month Suspension of Contributions: Effective for hardship distributions on or after January 1, 2020, 401(k) and 403(b) plans cannot impose a six-month suspension of contributions following a hardship distribution.
  • Changes to Safe Harbor Events: The final regulations modify the list of distributions deemed to be made on account of an immediate and heavy financial need by revising the casualty loss definition and adding a new FEMA disaster category, as well as incorporating prior IRS guidance on hardship distributions for primary beneficiaries. The revised list may be applied to hardship distributions as early as January 1, 2018.
  • Elimination of Requirement to Take Plan Loans: Effective January 1, 2019, employees are not required to take plan loans before receiving a hardship distribution.
  • Elimination of “Facts and Circumstances” Analysis: The facts and circumstances analysis for determining whether a hardship distribution is necessary to satisfy a financial need is eliminated in favor of a general standard that relies on three objective prongs (comparable to what was in the proposed regulations).
  • Expanded Hardship Distribution Sources for 401(k) Plans: Sources available for hardship distributions now include earnings on elective deferrals, QNECs, QMACs, and earnings on QNECs and QMACs, regardless of when contributed or earned.
  • Expanded Hardship Distribution Sources for 403(b) Plans: Earnings on pre-tax deferrals made to a 403(b) plan continue to be ineligible for hardship distributions. However, QNECs and QMACs would be eligible for hardship distributions in a 403(b) plan that are not held in a custodial account. QNECs and QMACs in a 403(b) plan that are held in a custodial account continue to be ineligible for hardship distributions.

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As explained above, future blog entries will provide more detailed analyses of these topics and the final regulations and will include best practices for implementing the operational changes affecting plan sponsors and plan administrators.

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