This article has been published in “The Advocate”, a monthly publication of the Arizona Association for Justice/Arizona Trial Lawyers Association, May-June 2017 issue, @2017 by Steven J. Bruzonsky, Esq.
ERISA Plan Document Request
Following is my latest form letter, provided for your use, when you request ERISA plan documents in ERISA healthplan subrogation/lien situations.You may need to modify the letter or delete nonapplicable paragraphs depending upon the specific situation. I always send the plan document request from myself, as the client’s attorney, on behalf of the client. Although ERISA plans may contend that ERISA’s up to $110 penalty per day for late disclosure of plan documents after 30 days applies only to requests from the plan participant and not their attorney, I find that clients for the most part will not follow up on plan document requests and generally its simply not practical for clients to do this. However, I have written the plan document request with the attorney signing on behalf of the client and including an authorization signed by the client. I generally research by finding Form 5500s online (http://freeerisa.benefitspro.com/) which give Plan Administrator info and then I call to verify the proper person that I should submit the plan document request to on behalf of the Plan Administrator and the fax number. You can submit the plan document request by fax (my online fax service emails me a receipt that the fax has been received) or by registered certified mail so you have some record of receipt.
ERISA PLAN DOCUMENT REQUEST:
(Name of Plan Administrator – should be set forth in SPD and/or Form 5500)
Plan Administrator for __________ Employee Benefit Plan
City, State, Zip Code
Re: Our Client/Your Plan Participant or Beneficiary
(In Care of Our Law Firm):
Dear Plan Administrator for __________ Employee Benefit (Including Medical) Plan:
Pursuant to my right as a plan participant or beneficiary of the above employer’s employee benefits (including medical) plan, I respectfully request copies of the below listed plan documents.
Please address any questions or follow up regarding this document request to my attorney:
[name, address, phone, fax & email of attorney]. Enclosed is an Authorization, which I have signed, directing you to provide the below requested plan documents to me in care of my above referenced attorney (preferably to my attorney’s email: ____________________).
ERISA (Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq), at
29 U.S.C. §1024(b)(4), provides that “the administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract or other instruments under which the plan is established or operated.” Failure to provide the requested documents within thirty days is subject to a $110.00 per day penalty for each day of noncompliance. 29 U.S.C. §1132(c)(1)(B); 29 C.F.R. § 2575.502c-1; See Final Rule Relating to Adjustment of Civil Monetary Penalties, 68 Fed.Reg. 2875-76 (Jan. 22, 2003). Moreover, the plan administrator is not protected from ERISA liability for failure to furnish nonexistent documents, but rather, if any of the current documents do not exist at the time of the request for plan documents, then ERISA imposes a penalty on the plan administrator. Cline v. Industrial Maintenance Engineering & Contracting Co., 200 F.3d 1223 (9th Circ. 2000).
I respectfully request that the above employer’s ERISA plan, including the above employer’s Medical Plan, provide to me, in care of my above referenced attorney, the below described documents issued effective for each plan year from January 1, ____(insert plan year in which accident/incident occurred) to present:
1. The medical plan Summary Plan Descriptions (SPDs) for the above years for the plan’s medical plan and their subrogation and/or lien provisions.
2. The “Written Instrument” (sometimes referred to as “Plan Document”, “Master Plan”, or “General Plan”) under which this ERISA employee benefit plan is established, including but not limited to the medical, short and long term disability plans subrogation and/or lien provisions. If the “Written Instrument” includes “Wrap” provisions, which incorporate by reference other plan documents, including but not limited to the medical, short and long terms disability plans subrogation and/or lien provisions, then please be sure to provide both the “Wrap” document and the applicable documents which are “wrapped” or incorporated by reference into the “Written Instrument”. (Cigna Corp. v. Amara, 563 U.S. 421 (2011) holds that the “Written Instrument” or “Plan Document” is the binding contract between the employer and its employees/insureds).
3. Amendments to the “Written Instrument” or “Plan Document”, including but not limited to the medical plan subrogation and/or lien provisions.
4. The Summary of Material Modifications (SMM) statements, including but not limited to the medical plan subrogation and/or lien provisions. (The SMM statements inform participants and beneficiaries of changes to the plan or to the information required to be in the SPD).
5. Copies of the employer ERISA plan’s following contracts:
Medical/health insurance contracts between the plan and medical/health insurance carrier(s) and amendments thereto including but not limited to Insurance Intermediary Services Contracts;
Medical/health insurance Stop Loss contracts and amendments thereto (including disclosure of at what point the medical Stop Loss Insurance started or would have started paying my medical benefits individual and aggregate);
Administrative Services Contracts and amendments thereto related to the above employer’s Medical Plan serving the state or region of myself as plan participant or beneficiary.
6. If any medical benefits by the employer’s healthplan or otherwise were provided under the Consolidated Omnibus Budget Reconciliation Act (COBRA), please provide the COBRA application and acceptance documents.
7. The last Form 5500, including all attached schedules and attachments, filed with the U.S. Department of Labor.
8. The federal ERISA statute and federal regulations exempt “Church Plans” from ERISA. The exception to this is if the plan has filed an exemption form with the Internal Revenue Service which opts the plan so that it is not exempt and covered by ERISA. If your plan has an affiliation with a church, please provide any exemption form filed with the Internal Revenue Service by your plan.
.9. If my health or disability benefits are provided by a multiple employer or union plan or trust: Please provide the determination by the U.S. Secretary of Labor that the above employer’s medical plan is established or maintained pursuant to a collective bargaining agreement. Also, please provide the plan’s complete last filed Form M-1 with each and every attachment filed along with the Form M-1. Additionally, please provide the union plan or trust’s Collective Bargaining Agrement including any subrogation/lien/reimbursement provision therein.
10. _______________, a subrogation collection company, on behalf of _________, the Third Party Administrator (TPA) for my employer’s ERISA healthplan, is asserting a lien against the settlement of my personal injury claim related to an accident/incident on _____________. ERISA, 29 U.S.C. § 1103(c) mandates that “the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purpose of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administration.” Once my attorney pays this lien, these funds are part of “the assets of (the) plan”, which per 29 U.S.C. § 1103(c) “shall be held for the exclusive purpose of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administration”
Please identify and provide the Plan document(s) provision(s) which show compliance with 29 U.S.C. § 1103(c) and/or which document to which Plan fund(s) my lien payment will be applied to or credited.
Again, please provide the above requested plan documents to me in care of my above-referenced attorney, preferably by email.
Thank you for your courtesy and assistance.
Very truly yours,
Attorney _______________, for
__________________, Plan Participant or Beneficiary
Enclosure: Authorization signed by client _______________
LIMITED AUTHORIZATION FOR RELEASE OF EMPLOYMENT AND EMPLOYER BENEFITS AND/OR HEALTHPLAN INFORMATION AND DOCUMENTATION
I hereby request and authorize ________________________________ to provide to me the below information and documents. I further instruct you to provide the below information and documents, on my behalf, to my attorney: [name, address, phone, fax & email of attorney].
The below requested information and documents pertain to:
Sponsor(Person Under Whose Employment Health Insurance Coverage is Provided)
These documents include: (1) Any and all documents pertaining to the above listed Insured Person(s) disclosable under ERISA (Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001 et seq) and its implementing regulations. (2) Any and all information and documents pertaining to the above listed Insured Person and/or Sponsor: Health insurance policies; Summary Plan Descriptions and all amendments ; eligibility for health insurance coverage; health care benefits and processing including but not limited to Explanation of Benefits (EOB); medical records, bills &itemized statements from any and all healthcare providers; and any and all information and documentation which is protected under HIPAA (The American Health Insurance Portability and Accountability Act of 1996). (3) Any and all documents pertaining to the above listed Insured Person and/or Sponsor regarding employment, earnings, absence from employment, loss of earnings, payroll records and personnel records. A PHOTOCOPY OF THIS AUTHORIZATION SHALL BE CONSIDERED AS EFFECTIVE AND VALID AS THE ORIGINAL.
Date Insured Person
Date Sponsor (Employee)