QUESTION: Our company has just received a letter from a participant in our health plan, asking for copies of numerous documents relating to the plan. What are our responsibilities?
ANSWER: ERISA § 104(b)(4) requires a plan administrator to furnish copies of specified plan documents within 30 days after a written request from a participant or beneficiary. Failure to timely provide requested documents could lead to financial penalties, so it is important to quickly evaluate the participant’s request and provide copies of the documents that are subject to the disclosure obligation. Here are some issues to consider in responding to the request.
- Plan Administrator’s Responsibility. The ERISA disclosure obligation and penalties for noncompliance fall on the plan administrator. Unless the plan document designates a different person or entity, the plan administrator is the plan sponsor, which in a single employer plan is the employer. We assume that your company is the “plan administrator” under ERISA. Courts are authorized, in their discretion, to impose penalties of up to $110 per day for each day that requested documents are not provided, starting on the 31st day after the request.
- Covered Documents. The specified documents that must be furnished upon request are the latest updated SPD (including any interim SMMs); the latest Form 5500; any final Form 5500 for a terminated plan; and any applicable bargaining agreement, trust agreement, contract, or “other instruments under which the plan is established or operated.” It can be challenging to determine what documents fall within the “other instruments” category. This is ultimately a facts-and-circumstances determination. The DOL and the courts have found this category to include plan documents, insurance policies, usual and customary fee schedules and guidelines, TPA contracts (if they affect plan administration), and minutes of plan meetings (affecting plan administration). The plan administrator is generally not obligated to furnish documents that are not within the plan administrator’s possession—for example, an insurer’s or claims administrator’s claim processing guidelines.
- How to Furnish. While the statute specifically refers to mailing requested documents, it appears that, like other ERISA-required disclosures, these documents are to be furnished using a method “reasonably calculated to ensure actual receipt of the material.” This would include any of the methods appropriate for furnishing SPDs, including mail, hand-delivery, or electronically (preferably in a manner that satisfies the DOL’s safe harbor for electronic delivery). A reasonable charge may be imposed for copying (up to 25 cents per page but not more than the actual cost), but not for postage or other tasks associated with handling the request.
Keep in mind that other situations may trigger an obligation to furnish documents to participants or beneficiaries. In addition to the requirement to furnish SPDs and other materials automatically, ERISA’s claims procedure rules require that a claimant be given, upon request and free of charge, “reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits.” Also, the courts and the DOL have sometimes relied on a generalized fiduciary duty to require that additional information be provided to participants and beneficiaries in individual situations.
Source: Thomson Reuters