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Northwest OH Legal Blog

Tuesday, July 5, 2016

The PBGC Reports That Multiemployer Program Needs Substantial Premium Increases. The Single-Employer Program Is Likely to Eliminate Its Deficit by 2025


The Pension Benefit Guaranty Corporation (PBGC) provides a safety net for participants in private-sector defined-benefit plans by insuring the participants' benefits under the plan. This federal corporation was established by the Employee Retirement Income Security Act (ERISA) of 1974 to give participants in plans covered by the PBGC guaranteed "basic" benefits in the event that their employer-sponsored defined benefit plans become insolvent.

The PBGC protects the pension benefits of more than 40 million Americans in private-sector pension plans and is directly responsible for paying the benefits of about 1.5 million people in failed pension plans. PBGC receives no tax dollars.
Read more . . .


Wednesday, June 1, 2016

Court of Appeals Expands Withdrawal Liability Rules for Construction Employers


In a case of first impression, the United States Circuit Court of Appeals for the Tenth Circuit held that work performed by a non-union company acquired after a construction industry employer ceased contributing to a multiemployer pension plan (“MEP”) triggered withdrawal liability.  The case, Ceco Concrete Construction, LLC v. Centennial State Carpenters Pension Trust, Nos. 15-1021, 15-1190 (10th Cir. May 3, 2016), signals a potential expansion of withdrawal liability rules applicable to construction industry employers that participate in MEPs.
Read more . . .


Wednesday, May 18, 2016

Internal Revenue Service Issues Guidelines Allowing Multiemployer Collectively Bargained Pension Plans to Have Normal Retirement Age Earlier Than Age 62


On February 23, 2016, the Internal Revenue Service (“IRS”) posted interim internal guidelines for IRS employees assigned to its Employee Plans Determinations and Examinations Division in reviewing determination letter submissions by multiemployer collectively bargained pension plans that provide for a normal retirement age (“NRA”) that is—  

  • earlier than age 62, but
  • ·not earlier than age 55.

The guidance has been warmly received by the sponsors of multiemployer pension plans whose determination letter submissions are still under review during the IRS’s determination letter cycle for multiemployer pension plans.

Background.  Pursuant to Treasury Regulation Section 1.401(a)-1(b)(2), a pension plan that has an “over 55-under 62” NRA must provide a demonstration that the NRA is reasonably representative of the typical retirement age for employees who work in the industry in which the covered workforce is employed.
Read more . . .


Tuesday, May 10, 2016

Did the Supreme Court Issue a License to Steal--or Subrogation as Usual?


            On January 20, 2016, the United States Supreme Court finally issued their written opinion in the long-awaited decision regarding an ERISA subrogation case, Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 2016 WL 228344 (January 20, 2016).  The highest court was asked to decide whether a plan beneficiary is obligated to reimburse his or her health insurance plan for medical expenses that the plan paid out, when that same beneficiary settles a third-party case BUT spends all of the settlement money.  Apparently the Supreme Court decided the beneficiary was not obligated to pay the plan back if the money was not “traceable.”

            The Montanile case is not unique in its facts as subrogation cases go.
Read more . . .


Tuesday, May 3, 2016

Supreme Court places additional limitations on ERISA plan’s right to recover medical-reimbursement costs


The Supreme Court dealt a setback to ERISA health funds in Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan. This case places further limits on ERISA Funds’ ability to recover a subrogation or reimbursement claim under the Employee Retirement Income Security Act of 1974 (ERISA).

This case involved a participant, Robert Montanile, who was covered under an ERISA health insurance plan. He was injured in an automobile accident.
Read more . . .


Thursday, March 10, 2016

Did the Supreme Court Issue a License to Steal--or Subrogation as Usual?

            On January 20, 2016, the United States Supreme Court finally issued their written opinion in the long-awaited decision regarding an ERISA subrogation case, Montanile v. Board of Trustees of the National Elevator Industry Health Benefit Plan, 2016 WL 228344 (January 20, 2016).  The highest court was asked to decide whether a plan beneficiary is obligated to reimburse his or her health insurance plan for medical expenses that the plan paid out, when that same beneficiary settles a third-party case BUT spends all of the settlement money.  Apparently the Supreme Court decided the beneficiary was not obligated to pay the plan back if the money was not “traceable.”

            The Montanile case is not unique in its facts as subrogation cases go.  Mr. Montanile was seriously injured by an intoxicated driver, sued him for $500,000 and was awarded recovery for the entire amount. The health plan for Mr. Montanile’s union, the National Elevator Industry, had already paid out $120,000 on behalf of Mr. Montanile to cover his medical expenses associated with the accident.  Communications between the plan’s board of trustees and Mr. Montanile’s lawyer were disjointed and his attorneys advised the trustees that the entire settlement fund would go to Mr. Montanile unless the trustees objected promptly.  The plan’s board of trustees waited 6 months to file an ERISA Section 502(a)(3) action, demanding that the plan be “made whole” for the expenses paid on behalf of Mr. Montanile, that related to the accident for which he received the $500,000 settlement.   But Mr. Montanile argued that, during the 6-month lag between his receipt of the settlement and the action filed by the plan’s board of trustees, that he spent all of the money so there were no funds that could be identified to seize.

            The plan’s trustees argued that the Supreme Court’s decision in Sereboff v. Mid Atlantic Medical Services, LLC, 547 U.S. 356 (2006) eliminated any need for the plan to trace the recoverable assets.  But the Court did not agree, holding that Sereboff does not contain any exceptions to the general asset-tracing requirement for equitable liens by agreement.  Instead, the Court went back to a case decided in 2002, Great West Life and Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002),  where it held that the settlement funds must be identifiable and within the possession of the defendants (the plan).  It then sent this case back to the U.S. District Court to determine whether any assets from the settlement could in fact, be traced.

            Montanile will have the unfortunate effect of increasing litigation between members that incur accidents and their self-funded health insurance plans as well as ERISA-covered disability plans.  Plan members will now have an incentive to quickly disburse and spend funds on non-traceable expenditures, such as groceries, utilities, phone bills, gambling debts and other disposable items that are not “traceable” instead of cars, boats, stocks, bonds and other savings alternatives. 

            So what does the Montanile case mean to Boards of Trustees and plan administrators?  For one thing, plan administrators will hesitate to patiently negotiate with a member’s attorney to settle a plan’s reimbursement issues.  Instead a law suit will need to be filed at the first notion that a claim cannot be resolved quickly after the settlement or recovery is awarded, to avoid the confusing decision reached by the Supreme Court.  Additionally, changes may need to be made to plan documents, summary plan descriptions (SPDs), claims’ notices and subrogation forms to clarify and assert a plan’s right to settlement assets.  For Boards of Trustees and plan administrators, these changes will require quick decisions and an extreme drift from the normal status quo in subrogation transactions within employee benefit plans. 


Wednesday, March 2, 2016

Court Refuses to Apply Deferential Review Without Clear Statement of Claims Administrator’s Discretionary Authority

A federal trial court in California has ruled that it will apply the “de novo” standard of review, taking a new look at a participant’s claim without deferring to the plan’s denial, because the plan documentation did not clearly establish that the claims administrator had discretionary authority to interpret plan provisions. The case is Noah U. v. Tribune Co. Medical Plan, 2015 WL 5999897 (C.D. Cal. 2015)]

The case involves a participant who was enrolled in one of the plan’s self-insured medical options.  The claims administrator (an insurance company acting under an administrative services agreement (ASA)) denied his initial claim and appeal. The participant sued. The claims administrator and the employer asked the court to apply the deferential standard of review (under which a court generally upholds a plan’s exercise of duly-authorized discretion, so long as it was not an abuse of discretion).

The court examined a variety of provisions in various documents cited by the employer and the claims administrator before concluding that, even if taken together (adopting the most generous interpretations of several poorly drafted attempts at incorporation by reference), these provisions still did not amount to the requisite grant of discretionary authority. For example, the plan document stated that a claims administrator (for a particular benefit) “may” have authority to exercise discretion in initial claim determinations and “certain” appeals. An SPD included similar language, as well as a reservation of the employer’s “sole authority” to exercise discretion “except to the extent such authority has been delegated.” Finally, the ASA, which the court reasoned might be relevant in interpreting ambiguous plan language, stated that the employer, and not the claims administrator, had “full and final authority” to interpret the plan. Thus, the plan did not contain the unambiguous grant of discretionary authority to the claims administrator required to avoid de novo review.  In essence the provisions were too vague.

The case will be heard by the court on the merits and the court will apply its own interpretation of the plan’s terms to determine coverage of the claim without deferring to the interpretation of the plan administrator. Not being entitled to deferential review can have a real impact because the court might interpret terms, such as medical necessity, differently from the claims administrator.

This case highlights the importance of clarity in making, documenting, and adhering to grants of discretionary authority. Some of the ambiguity in this case was due to the patchwork of documentation for the plan’s various benefit options.  The procedures and designated persons making decisions for different benefits should be spelled out explicitly. 


Wednesday, February 17, 2016

Does Your Employee Benefit Plan Need a Social Media Policy?

               In this 21st Century of personalized websites, blogs, chat rooms, Twitter and Facebook posts, Snapchat and Instant Messenger, the use of Social Media can be overwhelming.  On one hand, the use of these social media tools can reach fund members and beneficiaries more quickly and directly than direct mail ever has.  But on the other hand, the open design and use of these tools can be dangerous for several reasons, making the implementation of a Social Media policy a valuable document to ensure an orderly process and backstop for Boards of Trustees, and even employees, that are interested in using resources that revolve around social media to communicate benefits information or other work-related communications.  

               There are many issues that accompany the use of social media resources that must be addressed in an effective social media policy.  First, the ownership of the site or page must be clearly established---does the site belong to the Fund/Plan or is it owned by the Union itself or even an employers’ association?  What groups are granted access to the site or pages and who will monitor whether Fund members can respond freely to posts with additional questions or viewpoints?  When members terminate or retire from the Fund, can they still access the site’s information?  What rules under the Employees Retirement Income Security Act (ERISA) apply to notices that may be posted on this site and who is accountable for ensuring that these ERISA rules are followed?  A Social Media policy should clearly identify the responses to these questions in order to protect your Fund and its Board of Trustees while spelling out basic guidelines for using social media forms to employees.

               Guidelines in a Social Media policy should emphasize a few basic principles regarding all means of communication or posting information of any sort on the Internet, including a Plan’s or employee’s web log, blog, journal, bulletin board, chat room, whether it is work-related or a personal electronic communication.  First, anyone posting communications online should consider both the risks and the benefits of such communications being seen by sub-groups and even the public.  Secondly, the creator of online communications should realize that they are ultimately responsible for anything that they create or post.  Finally, anyone who posts communications, either personally or on behalf of a Fund, should realize that any internet activities can affect their job performance, performance of fellow Trustees or co-workers, Fund participants, customers, suppliers and might result in removal as a Plan’s Trustee, an employee’s disciplinary action or even termination of employment.

               A Social Media policy drafted and transmitted to Fund members or employees should include components that pertain to a statement of a Fund’s, Union’s or Employer’s ethics, a discrimination or harassment prevention provision and a warning against threats of violence or unlawful conduct.   Anyone posting information should be reminded that being respectful is essential and that, any complaints or criticisms made of employers or benefits should avoid the use of photographs, videos or audio clips that might be viewed as harassment or bullying.  Everyone must be mindful that offensive posts made on the basis of race, gender, disability or religion could contribute to a hostile work environment and could violate company policies or state and federal laws.  Accuracy of any Information posted should be emphasized, an avoidance of information that is known to be false innuendo or rumor should be strongly encouraged. When expressing personal viewpoints, it should be made clear that the views are not reflective of the Board of Trustees, Fund or Members.  The effective dates of any notices, document changes or information regarding plan benefits  should be clearly posted and kept current.

               Boards of Trustees, Unions or employer associations should take time to collaborate on their intentions in using social media and weigh the benefits to their employee benefit plan, members and  beneficiaries against the dangers and risks to these stakeholders when social media policies are either not enacted or are violated.  For further guidance on Social Media policies, Trustees, contributing employers and Fund members should contact legal counsel.  


Monday, January 18, 2016

Internal Revenue Service Issues 2016 Cost-of-Living Adjustments for Retirement Plan Limits

On October 21, 2015, the Internal Revenue Service (“IRS”) announced cost-of-living adjustments to dollar limitations for items affecting tax-qualified retirement plans under the Internal Revenue Code (“Code”) in 2016.  The announcement includes the following highlights for 2016:

  • The elective deferral (contribution) limit for employees who participate in section 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan remains unchanged from the limit in 2015, $18,000.
  • The catch-up contribution limit for the above listed plans for employees aged 50 and over also remains unchanged from the limit in 2015, $6,000.
  • The annual benefit limitation for defined benefit plans under Code Section 415(b)(1)(A) remains unchanged in 2016 at $210,000.
  • The annual addition limit for defined contribution plans under Code Section 415(c)(1)(A) remains unchanged in 2016 at 53,000.

The following table sets forth the Code limits applicable to 401(k) plans, profit sharing plans, and defined benefit plans for 2016, with a comparison to such limits for 2015 and 2014.

 

Limits under Applicable Code Section

2016

2015

2014

Annual Compensation - 401(a)(17)/404(l)

265,000

265,000

260,000

Elective Deferrals under 401(k) Plan - 402(g)(1)

18,000

18,000

17,500

Catch-Up Contributions under 401(k) Plan - 414(v)(2)(B)(i)

6,000

6,000

5,500

Annual Addition Limit for Defined Contribution Plans - 415(c)(1)(A)

53,000

53,000

52,000

Highly Compensated Employee Threshold - 414(q)(1)(B)

120,000

120,000

115,000

Annual Benefit Limit for Defined Benefit Plans - 415(b)(1)(A)

210,000

210,000

210,000

Key Employee Compensation Threshold - 416(i)(1)(A)(i)

170,000

170,000

170,000

Taxable Wage Base for Social Security Taxes

118,500

118,500

117,000


Tuesday, November 10, 2015

The IRS and HHS Have Released New Information on Affordable Care Act’s PCORI fees and Reinsurance Contributions

PCORI Fees.

The IRS in Notice 2015-60 announced that the adjusted applicable dollar amount for Patient Centered Outcomes Research Institute (PCORI fees for plan and policy years ending on or after October 1, 2015 and before October 1, 2016 is $2.17.

This is a $.09 increase from the amount in effect for plan and policy years ending on or after October 1, 2014 and before October 1, 2015. PCORI fees are payable by insurers and sponsors of self-insured plans. The fees are calculated by multiplying the applicable dollar amount for the year by the average number of covered lives.

Reinsurance Contributions.

HHS has announced that the form for submitting the 2015 annual enrollment count and remitting the contribution amount owed for the transitional reinsurance program is now available. According to the announcement, contributing entities (generally, health insurers and self-insured group health plans providing major medical coverage) must submit the 2015 form and schedule their reinsurance contribution payments no later than November 16, 2015.

The contribution amount is $44 per covered life. The payment can be paid in a single payment or in two parts.  If the contribution is made in a single payment, the payment is due no later than January 15, 2016. If the contribution is paid in two parts, the first payment ($33 per covered life) is due no later than January 15, 2016 and the second payment ($11 per covered life) is due no later than November 15, 2016.

As was the case with the 2014 benefit year, all submissions must be made online through the government portal: pay.gov. A Transitional Reinsurance Contributions webpage (registration required) provides additional information and resources.

PCORI fees are used to fund research on patient-centered outcomes and apply to plan and policy years ending after October 1, 2012 and before October 1, 2019.

Reinsurance contributions are used to fund a temporary reinsurance program (in operation from 2014 through 2016) intended to stabilize premiums in the individual insurance market.

Who Pays the Fee.

Issuers of specified health insurance policies and plan sponsors of applicable self-insured health plans are responsible for reporting and paying the PCORI fee.

For insured plans, the insurer is responsible for paying PCORI fees and reinsurance contributions.  For self-insured plans, PCORI fees are imposed on the plan sponsor and generally cannot be paid from ERISA plan assets. However, the DOL has indicated the board of trustees of a multiemployer plan (which has no other source of funding), as well as a voluntary employees’ beneficiary association (VEBA) providing retiree-only coverage, may use plan assets to pay the fee.

By contrast, Reinsurance contributions are imposed on the plan itself and may be paid from ERISA plan assets. 


Tuesday, November 3, 2015

Third Circuit Court of Appeals Requires Benefit Denial Letters to Include Notice of Plan-Imposed Limitations Period for Civil Actions

The Employee Retirement Income Security Act of 1974 (“ERISA”) requires all ERISA-governed plans to notify claimants of their right to bring a civil action in court for the purpose of recovering benefits or enforcing their rights under the plan’s terms.  In Mirza v. Insurance Administrator of America, Inc., No. 13-3535 (3d Cir. August 26, 2015), the United States Court of Appeals for the Third Circuit became the latest court to require that ERISA-governed benefit denial letters include specific notice of the plan’s limitations period for bringing a civil action in court.  In reaching this conclusion, the Third Circuit joined the First and Sixth Circuits of the United States Court of Appeals.  See Moyer v. Metro. Life Ins. Co., 762 F.3d 503 (6th Cir. 2014); Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675 (1st Cir. 2011).

Background.  Under the facts in Mirza, Dr. Neville Mirza performed back surgery on a patient who was a participant in an ERISA-governed healthcare plan sponsored by her employer.  Following the surgery, the patient assigned to Dr. Mirza the right to pursue her plan benefits.  Dr. Mirza then submitted a claim to the claims administrator, Insurance Administrator of America (“IAA”).  IAA denied the claim on the ground that the surgery was medically investigational.  Dr. Mirza appealed the decision, but the claims administrator, by letter dated August 12, 2010, upheld IAA’s decision.  The letter notified Dr. Mirza of his right to bring a civil action under ERISA Section 502(a)(1)(B), but did not inform him of the plan’s one-year limitation period for bringing suit.

Sometime thereafter, Dr. Mirza and another healthcare provider to whom the participant had assigned her benefit claim rights retained a law firm to pursue their respective claims.  On April 11, 2011, 8 months after the plan’s final denial letter, the law firm obtained a copy of the plan document.  The plan document required that any lawsuit against the plan or the plan administrator following an adverse benefit determination be filed within one year following receipt of the plan’s final denial letter.  Dr. Mirza brought suit on March 8, 2012—almost 19 months after he received the final denial letter.

Despite the plan’s time restriction on civil court actions against the plan or the plan administrator, Dr. Mirza filed a complaint in federal district court, naming IAA as a defendant.  IAA moved for summary judgment on Dr. Mirza’s claim, asserting that the statute of limitations had run.  The federal district court for the District of New Jersey granted IAA’s motion to dismiss.  The district court reasoned that the plan’s one-year deadline for seeking judicial enforcement was reasonable, that Dr. Mirza’s suit was brought after that period had expired, and that he was not entitled to equitable tolling because he had notice (through his attorney) of the deadline.

Ruling on Appeal.  Relying on ERISA’s regulatory requirements for benefit denial letters, the United States Court of Appeals for the Third Circuit reversed.  The court asserted that the equitable tolling issue was irrelevant and focused only on the defendants’ regulatory obligations under ERISA.  United States Department of Labor Regulation Section 2650.503-1(g)(1)(iv), which governs the manner and content of benefit determination notices, requires plan administrators to provide “[a] description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under [ERISA] Section 502(a) following an adverse benefit determination on review.”  The court interpreted the word “including” in the ERISA regulation to mean that plan administrators, in their benefit denial letters, must inform claimants of any plan-imposed deadlines for judicial review. 

The court observed that this interpretation of the ERISA regulation had been recently adopted by the Courts of Appeal for the First and Sixth Circuits.  The court also rejected defendants’ argument that the denial letter to Dr. Mirza substantially complied with the regulations.  The court held that the plan administrator’s failure to include the plan’s judicial review time limits in the adverse determination letter caused the letter to fail to be in substantial compliance with the applicable regulatory requirements.  The court then concluded that the proper remedy for the defendants’ failure to comply with the regulation was to abrogate the plan’s limitations period and apply the most analogous statutory limitations period under New Jersey state law.  In this case, that was New Jersey’s six-year breach-of-contract limitation period.  Because Dr. Mirza’s complaint fell within that period, the court remanded the case to the district court for further proceedings.

Takeaways.  The Third Circuit’s opinion should alert plan administrators that when they issue benefit denial letters, they should now err on the side of caution by explicitly notifying the recipient of any plan-imposed deadlines for judicial review.  As a possible silver lining, the Third Circuit court stopped short of requiring notice of the limitations period for the most analogous state law claim.  It noted that, while the issue was not before the court, such a requirement would require legal research into various state laws for each claim and could potentially cause a plan administrator to be perceived as providing legal advice to claimants.  Nonetheless, the court’s decision in Mirza should, at the very least, prompt plan administrators to review their procedures for notifying claimants of adverse benefit determinations.


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With an office located in Toledo , OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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