Sponsors of qualified retirement plans and group health plans may receive tens, if not hundreds, of plan document requests every year. Responding to these requests in accordance with the rules set forth under the Employee Income Retirement Security Act (ERISA) can be fairly straight-forward, especially if the plan sponsor maintains updated copies of all requested plan documents. However, plan sponsors should consider going beyond ERISA’s bare-bones requirements and make it a practice to also provide a cover letter, containing certain specific information.
Under ERISA Section 104(b)(4), any participant or beneficiary (or their personal representative) may submit a written request for copies of the following plan materials:
· The formal plan document, including all amendments
· The latest updated summary plan description, including all summaries of material modifications
· The latest or final annual report (if any)
· An applicable collective bargaining agreement (if any)
· The trust agreement (if any)
· Any other contract instrument under which the plan is established or operated
Under ERISA Section 502(c)(1), plan sponsors have 30 days to provide the requested material, or face potential penalties of up to $110 per day.
Why Include a Cover Letter? What Should It Say?
As outlined above, under ERISA, plan sponsors are not required to provide any additional material when responding to a request for plan documents. However, it may pay off to include the following, additional information in a cover letter, when responding to participant requests:
· The Date of the Response. By including the date of the response in the cover letter, plan sponsors have a specific record of when the response is provided in case they ever have to prove that they satisfied the 30-day deadline outlined above.
· The Name of the Person to Whom the Documents are Provided. Participants may ask their lawyer or other representative to request documents on their behalf. It is a best practice to keep track of who is receiving documents in case the plan sponsor is asked to prove that the documents were provided to the correct party. This will also help avoid duplicative responses.
· A List of the Documents Provided. Rather than simply stating, “Copies of your requested documents are enclosed,” we recommend including a specific list of what is included. This may help plan sponsors track which documents have been provided to each participant and respond to repeat requests.
· Information About Next Steps. If a request is submitted by someone other than a participant or beneficiary, for example, the participant’s attorney, then it may cut down on subsequent back and forth if the plan sponsor provides additional information about what next steps may be required.
For example, plan sponsors’ responses may include, “If you intend to file a claim or appeal on behalf of the participant/beneficiary, we will require a signed authorization from the participant/beneficiary specifically naming you as such participant’s/beneficiary’s authorized representative for this purpose.”
For a health plan request, a plan sponsor’s response may include, “As you are aware, the plan sponsor cannot disclose any protected health information about any individual without a signed HIPAA authorization form. We have included our HIPAA authorization form for your use, if needed.”
As simple as it may sound, including a detailed cover letter with the response may save plan sponsors time and stress in the long run.
This article originally appeared on the Foley & Lardner website. The information in this legal alert is for educational purposes only and should not be taken as specific legal advice.
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