Acknowledgments for the Third Edition
CHAPTER 1
INTRODUCTION
§1.01 Scope
§1.02 Focus of This Work
CHAPTER 2
BASIC FEDERAL INCOME TAX CONCERNS
APPLICABLE TO WELFARE BENEFITS
§2.01 General Overview
§2.02 Amounts Received by Employees Pursuant to
Accident and Health
(A) Self-Insured Medical Expense Reimbursement Plans
§2.03 Contributions by Employer to Accident and Health Plans
§2.04 Qualified Medical Expenses
§2.05 Non-taxable Fringe Benefits
(A) Qualified Employee Discounts
(B) Working Condition Fringe Benefits
(C) De Minimus Fringe Benefits
(D) Qualified Transportation Benefits
(E) Qualified Moving Expenses
(F) Qualified Retirement Planning Services
§2.06 IRC § 152 Dependant Status
(A) Qualifying Children
(B) Qualifying Relative
§2.07 IRC § 125 Cafeteria Plan
(A) Cafeteria Plan Administrative Issues
(B) Changes in Election
(C) Flexible Spending Arrangements
§2.08 Dependent Care Assistance
S2.09 Non-Qualified Deferred Compensation
CHAPTER 3
FORMS OF EMPLOYEE WELFARE BENEFITS
§3.01 Scope
§3.02 Employer Sponsored Traditional Medical, Accident,
Surgical and Hospital Care Benefit Programs
§3.03 Health Reimbursement Accounts
§3.04 Health Savings Accounts
§3.05 Archer Medical Savings Accounts
§3.06 Sickness Programs and Paid Time Off
§3.07 Disability Programs
§3.08 Vacation and Holidays
§3.09 Death Benefits (Life Insurance)
§3.10 Severance and Unemployment Benefits
§3.11 Child Care
§3.12 Scholarship/Educational Assistance
§3.13 Pre-Paid Legal Service Plans
§3.14 Housing Assistance Programs
CHAPTER 4
COVERAGE REQUIREMENTS, EXCLUSIONS AND LIMITATIONS
§4.01 Scope
§4.02 Medical versus Custodial Care
§4.03 Experimental Treatment/Medical Necessity Exclusions.
§4.04 Self-Inflicted Injury Exclusions
§4.05 Criminal Activity Exclusion
§4.06 Temporal Limitations and Pre-Existing Conditions
(A) Pre-Existing Conditions after HIPAA
(B) Pre-Existing Conditions Not Governed by HIPAA
§4.07 Required Health Plan Benefits
(A) The Newborns' and Mothers' Health Protection Act of 1996
(B) Mental Health Parity Act of 1996 as Amended in 2008
(C) The Women's Health and Cancer Rights Act of 1998
(D) Michelle's Law (Student Coverage Extensions)
§4.08 Enrollment Limitations
§4.09 Cost Allocation, Sharing, and Other Limitations
(A) Restrictions on Multiemployer and MEWA Coverage Terminations
(B) Benefit Assignments and Co-Payments
(C) Subrogation and Reimbursement Requirements
(D) Coordination of Benefits
(E) Medicare/Medicaid as Secondary Payer
(F) TRICARE/CHAMPUS as Secondary Payer
(G) Medicaid Coordination Rules
CHAPTER 5
DISCLOSURE OF MEDICAL INFORMATION
§5.01 Scope
§5.02 Overview and History
§5.03 The General Rule, Definitions, and Exceptions
§5.04 Protected Health Information (PHI)
§5.05 Permitted and Required Disclosures
§5.06 "Minimum Necessary" Disclosure
§5.07 Other Disclosures
§5.08 Disclosure to Business Associates
§5.09 Business Associate Contracts
§5.10 Group Health Plan Disclosures
§5.11 Uses and Disclosures to Conduct, Treatment, Payment, and Health Care Operations
§5.12 Authorizations and Consents
§5.13 Notice and Opportunity to Object
§5.14 Notice of Privacy Practices
§5.15 Right to Protect PHI
CHAPTER 6
DISABILITY
§6.01 Scope
§6.02 Disability in the Workplace
§6.03 The Americans with Disabilities Act
§6.04 The Concept of ADA Disability
§6.05 ADA Qualified Individuals with Disabilities
§6.06 ADA Covered Entities
§6.07 ADA Benefit Disparity
§6.08 The ADA Duty
§6.09 The "Insurance" ADA Exception
§6.10 Disability Applications/Benefits and ADA Protection
§6.11 Managing the Benefits/Accommodation Issues
CHAPTER 7
RETIREE HEALTH ISSUES
§7.01 Overview and Scope
§7.02 Retiree Health—Generally
§7.03 Vesting
§7.04 Funding
§7.05 Statement of Financial Accounting Standards No. 106
§7.06 Integration with Other Employee Benefits
§7.07 Medicare/Medicaid as Secondary Payer
CHAPTER 8
ERISA COVERAGE
§8.01 Scope
§8.02 Participants and Beneficiaries
§8.03 Employer Status
§8.04 Employees
§8.05 ERISA-Covered Welfare Benefits
§8.06 Plan, Fund, or Program
§8.07 ERISA Coverage
§8.08 Exceptions to ERISA Coverage
§8.09 Exempt Government Plans
§8.10 Church Plans
§8.11 Workers' Compensation, Unemployment Compensation,
and State Disability Programs
§8.12 Non-U.S. Plans
§8.13 Top Hat Plans
CHAPTER 9
ERISA PREEMPTION
§9.01 Scope
§9.02 Preemption-Generally
(A) State Laws, Defined
(B) "Relate To" versus "Remote and Tenuous Connections"
(C) The Plan Requirement
§9.03 Scope of the Preemptive Effect—Occupation of the Field
§9.04 ERISA Preemption Exemptions
- State Laws Regulating Insurance, Banking, and Securities
(B) The Insurance Savings Clause as Applied
(C) The Deemer Clause as Applied
(D) Generally Applicable Criminal Law Exemption
(E) The Multiple-Employer Welfare Arrangement
(MEWA) Exemption.
(F) Qualified Medical Child Support Orders
(G) The Medicaid Secondary Exemption
(H) State Claims Procedures Protected by the 2000
ERISA Claims Procedure Regulations
(I) Protection against Preemption of Specific
State Health Care Legislation
(J) The Federal Savings Clause
(K) Automatic Enrollment and Contribution Deductions
§9.05 ERISA Preemption as Applied
(A) Wrongful Termination Cases
(B) Breach of Contract Claims
(1) Benefit Claims
(2) Service Contract Disputes
(C) Tort Theories
(D) Breach of Fiduciary Duty
(E) State Wage Standard Statutes
§9.06 Professional Negligence Claims
§9.07 Provider Claims
(A) Beneficiary Designation Disputes
§9.08 Preemption and State Flexibility in the Regulation of
Pre-Existing Conditions
§9.09 ERISA Preemption and State Family Law
CHAPTER 10
ERISA DISCLOSURE AND REPORTING OBLIGATIONS
§10.01 Overview and Scope
§10.02 The Plan Administrator
§10.03 Documents under Which the Plan Is Operated
§10.04 Document Retention
§10.05 The General Duty of Reporting and Disclosure
§10.06 Plans Exempt from ERISA Reporting and Disclosure
(A) Apprenticeship/Training Exception
(B) Day Care Center Exemption
(C) The Select Management Group/Highly
Compensated Employee Plan Exemption
(D) Dues Financed Plans Maintained by Labor
Organizations Exception
§10.07 The Duty of Disclosure to Participants
(A) Acceptable Methods of Furnishing Information
(B) Duty to Make Materials Available
(C) Special Disclosures
(D) Electronic Distribution
§10.08 Response to Inquiries
(A) Format of the Request
§10.09 Plan Description and Summary Plan Description Requirements-Generally
§10.10 Style and Format of the SPD
§10.11 Required Contents of the Summary Plan Description
§10.12 Special Rules Applicable to Health Plans
§10.13 Notice of ERISA Covered Rights
(A) The Pre-2001 Notice of ERISA Covered Rights
(B) The Model Notice Under the 2000 Regulations
§10.14 SPD Foreign Language Requirements
§10.15 The Balance between Complete Disclosure and a Comprehensible Summary
§10.16 Alternative Compliance for Employers with Multiple
Plans
§10.17 Timely Distribution of the SPD
§10.18 Modifications to the Plan and the Summary of Material Modifications
§10.19 Impact of Defective SPDs
§10.20 Annual Reporting and Financial Disclosure
Obligations-Generally
(A) Required Contents of the Annual Report
(B) Auditing Requirements
(C) Form 5500 with Schedules and Instruction
(D) Annual Report Exceptions and Alternatives
(E) Timely Filing of the Annual Report
§10.21 Summary Annual Report
§10.22 Reporting and Disclosure Enforcement and
Compliance-Generally
(A) Penalties for Failure to Respond
(B) Criminal Penalties
(C) Reliance on Administrative Interpretations Defense
CHAPTER 11
COBRA CONTINUATION HEALTH COVERAGE
§11.01 Overview and Scope
§11.02 Continuation Health Coverage-Generally
§11.03 Special Terms-Covered Employees and Qualified Beneficiaries
§11.04 Plans Subject to a Continuation Health Coverage
Requirement
(A) Small Employer Exclusion
(B) Exempt Government Plans
(C) Other Exclusions from Continuation Health
Coverage
§11.05 Qualifying Events-Generally
(A) Death of the Covered Employee
(B) Termination or Reduction of Hours
(1) Business Reorganizations and Employer Sales
(2) Gross Misconduct Exception
(3) USERRA Related Health Coverage
(C) Divorce or Legal Separation
(D) Covered Employee Becomes Eligible for Medicare Benefits
(E) Dependent Child Ceases to Be a Covered Dependent
(F) Commencement of Employer Bankruptcy for Employees Receiving Health Benefits
§11.06 The Coverage That Must Be Provided
§11.07 Impact of the Qualifying Event on Deductibles
§11.08 Impact of Post-Qualifying Event Changes in the Plan
§11.09 Notice Requirements
(A) Notice at Commencement of Coverage
(B) Employer Notice Requirements
(C) Notice Required from Employee or Qualified Beneficiary
(D) Administrator's Notice Requirements
(E) The Quality of Notice
§11.10 Election and Waiver
(A) Multiple Qualified Beneficiary Election Issues
(B) Coverage During the Election Period
§11.11 Duration of Continuation Health Coverage-Generally
(A) Maximum Period of Coverage
§11.12 Termination of Continuation Health Coverage
§11.13 Continuation Health Coverage and Conversion Options
§11.14 Cost of Coverage and Computation of Premium-Generally
(A) 'Applicable Premium'
(B) Extended Coverage Premiums
(C) Adverse Selection
§11.15 The COBRA Fangs—When Things Go Wrong
(A) Notice Failures
(B) Tax Liability
CHAPTER 12
ERISA FIDUCIARY RESPONSIBILITY
§12.01 Overview and Scope
§12.02 Plan Requirements
§12.03 The Trust Requirement
§12.04 Determining the Existence of and Identifying Plan Assets
§12.05 Plan Assets and Participant Contributions
§12.06 Asset Reversions
§12.07 Bonding
§12.08 Plan Modifications
§12.09 Fiduciary Status
(A) Named Fiduciaries
(B) Fiduciary Status by Conduct
§12.10 Multiple Capacities and the "Two Hat" Rule
§12.11 Fiduciary Duty—Generally
(A) The Sole and Exclusive Benefit Rule
(B) The Prudent Fiduciary Rule
(C) Compliance with Plan Documents
(D) Participant Communication
(1) Behind the Scenes Financial Arrangements
(2) Anticipatory Communication
(E) Maintenance of the Indicia of Asset Ownership
outside the United States
(F) Fiduciary Duty on Sale or Termination of the
Business
§12.12 Prohibited Transactions
(A) Fiduciary, Plan Asset, Party in Interest
(B) Participant Loan Exception
(C) Contracts for Services and Office Space.
(D) Other Statutory Exemption
§12.13 Prohibited Transaction Issues for Non-Pension Plans
(A) Correction/Cures
§12.14 Delegation of Fiduciary Responsibility
§12.15 Resignation, Disqualification and Removal of Fiduciaries
§12.16 Fiduciary Liability
§12.17 Co-Fiduciary Liability
§12.18 Insurance
CHAPTER 13
EMPLOYEE BENEFIT DISCRIMINATION
§13.01 Overview and Scope
§13.02 Disparate Treatment Based on Prohibited Criteria
§13.03 Disparate Impact of Facially Neutral Criteria on
Protected Class Members
§13.04 Employment Discrimination Under Title VII of the
Civil Rights Act of 1964
§13.05 Sex-Based Discrimination
§13.06 Pregnancy Issues
§13.07 Other Title VII Discrimination Issues
§13.08 Genetic Information Discrimination
§13.09 Age Discrimination-Generally
(A) The Bona Fide Employee Benefit Plan Exception
(B) The Older Worker Benefit Protection Act
(C) Waivers
(D) Medicare Integration
§13.10 Veteran Status
(A) Prior Notice
(B) Duration of the USERRA Leave
(C) Reemployment Rights
(D) The "Escalator Rule"
(E) Non-Discrimination
(F) Impact of USERRA Leave on Other
Employee Benefits
§13.11 ERISA Discrimination
(A) The Prima Facie Case
(B) Plan Amendments and Terminations
(C) Coercive Interference
§13.12 Discrimination Based on Health Status
CHAPTER 14
ERISA ENFORCEMENT AND LITIGATION
§14.01 Overview and Scope
§14.02 ERISA Claims
§14.03 Choice of Law
§14.04 Proper Parties in ERISA Actions
§14.05 Standing
(A) Health Care Provider Standing
(B) Standing of Others Not Identified in the Statute
§14.06 Participant Claims for Reporting and Disclosure
Penalties
§14.07 Participant Claims for Benefits
§14.08 The Duty to Exhaust Intra-Plan Remedies in the
Benefit Claims Process
§14.09 The Intra-Plan Claims Process
(A) Claims Procedure Requirements in General
(B) Claims Procedure Requirements for Health Plans
(C) Claims Procedure Requirements for Disability
Plans
(D) Claims Filing and Initial Processing
(E) Notice of Claim Denial
(1) Claim Denials (pre-2000 Regulations)
(2) Claim Denials under the 2000 Regulations
(F) Timeliness Rules for Communicating Plan
Benefit Denials
(1) Non-Health and Disability Claim Denials
(2) Health Claim Denials
(a) Urgent Care Claims
(b) Concurrent Care Decisions
(c) Other Claims
(i) Pre-Service Claims
(ii) Post-Service Claims
(3) Disability Claim Denials
§14.10 Intra-Plan Claims Review
(A) Pre-2000 Benefit Appeals
(B) Post-2000 Regulation Appeal Procedures
(1) Group Health Plans
(2) Disability Benefit Plans
(C) Notification of Review Decision
(1) Group Health Plans
(2) Disability Claims
(3) Calculating Time Periods
(4) Manner and Content of Notification of Benefit
Determination on Review
§14.11 The Standard of Review in Claims Cases
(A) The Abuse of Discretion Standard
(B) The De Novo Standard of Review
§14.12 The Standard of Review Applied to Factual
Determinations
§14.13 Contra Proferentum
§14.14 Determining Whether an Abuse of Discretion Occurred
§14.15 Breach of Fiduciary Duty Claims-Remedy to Plan
§14.16 "Profit or Loss" in Fiduciary Breach Remedies
§14.17 Breach of Fiduciary Duty-Remedy to Participant/
Beneficiary
§14.18 Exhaustion of Remedies in Fiduciary Breach and
Statutory Claims
§14.19 Collection of ERISA Contributions
§14.20 Other Statutory Claims
§14.21 Jurisdiction and Removal
§14.22 Venue
§14.23 Limitations
§14.24 Class Action
§14.25 The Right to a Jury Trial
§14.26 Remedies
§14.27 Attorney Fees
(A) Calculating the Amount of Fees
(B) Para-Professional Fees
§14.28 Settlement Issues
§14.29 Department of Labor Enforcement Proceedings
(A) Penalties for Untimely Annual Reports
(B) Prohibited Transaction Enforcement Proceedings
(C) The Fiduciary Breach Penalty Proceedings
(D) Review of Secretary of Labor Orders
(E) Penalties for Nondisclosure of Medicare/Medicaid
Coverage Data Bank Information
TABLE OF CASES
INDEX
