1. Title Goes Here Presented By: Jason Rothman, Esq. Benefits Reporting and Disclosures: Are You in Compliance?

2. Title Goes Here Understandability Content Requirements Wrap Plan Documents Distribution Timing Summary Plan Descriptions

3. Understandability of SPD “Written in a manner calculated to be understood by the average plan participant and be sufficiently accurate and comprehensive to reasonably apprise such participants of their rights and obligations under the plan” Clear, complete, easily understood and contain examples Easily understood and comprehensive – better to err on the side of accurate and comprehensive

4. Practical Tips for Dealing with the Understandability Requirements Avoid jargon, abbreviations and acronyms Glossary of definitions DOL model or sample language Examples Simple vocabulary Separate SPD’s for groups of employees that have different benefits

5. Plan-Identifying Information Plan Name and Number Name, Address and EIN of Employee Type of Administration Name and address of Plan Administrator, Trustee(s) and Agent for Service of Process Plan Year Collective Bargaining Status

6. Description of Eligibility and Benefit Provisions Eligibility conditions Normal Retirement Age Description of plan benefits Description of joint and survivor benefits and QDRO procedures

7. Cost-Sharing Provisions of Group Health Plan Description of premiums, deductibles, co- insurance, co-payments Limits on benefits and requirements to use network providers Pre-authorization and utilization review

8. Required Disclosure of Certain Laws – Group Health Plans COBRA Mental Health Parity Women’s Health and Cancer Rights Act Maternity Length of Stay Dependent coverage changes (Michelle’s law, CHIP) HIPAA PPACA

9. Information Regarding Claims Procedures Description of the procedures governing claims for benefits under the plan, any applicable time limits, and remedies under the plan for denied claims, or provide claims procedures as a separate document with a statement to this effect in the SPD

10. Statement of ERISA Rights A statement describing the ERISA rights of participants and beneficiaries Model language set out in DOL regulations Include a reference to the plan’s claims procedures and reference the claimant’s need to exhaust the plan’s claims procedures before filing benefits litigation

11. What Else Should Be Included in SPD? Employer’s right to amend or terminate the plan Statement that in the event of conflict between the terms of the plan document and the SPD, that the plan document will control Interpretation Description of circumstances causing loss or denial of plan benefits Statement that a retirement plan is or is not eligible for PBGC Insurance Information regarding plan contributions and funding

12. What Is Not an SPD [or even a Plan Document]? Insurance Certificate or “booklet” provided by the insurer, or self-insured plan “booklet” provided by a third party administrator that does not meet all of the content requirements

13. Wrap Plan Documents Can be used when employer has a plan “booklet” or “certificate” that does not meet the requirements of an SPD and/or a plan document A document can be prepared that contains all of the ERISA-required language, incorporate the certificate(s) and together the documents form the plan document

14. Distribution of SPD 1.New Plans – Distribute SPD within 120 days 2.New Participants – must be provided within 90 days after the individual becomes covered under the plan

15. Distribution of SPD continued… 3.Plan Amendments – SMM’s ●Provide a description of the amendment to participants within 210 days after the end of the year in which the change is adopted ●Note: a material reduction of benefits under a group health plan must be disclosed within 60 days of the change BUT NOTE HEALTH CARE REFORM 4.Plan Amendments – New SPD ●A revised and updated SPD must be distributed to participants every five years if plan amendments have been made during that time

16. Title Goes Here Summary of Benefits and Coverages

17. SBCs Generally PPACA Required Document for Group Health Plans Model Form 4 pages (double sided) 12 point font Content Requirements

18. Distribution of SBCs 2013 Open Enrollment Stand Alone Document or Combined (i.e. with SPD) Paper or Electronic (DOL Regs) “Culturally and Linguistically appropriate manner.”

19. Title Goes Here Retirement Plan Fee Disclosures for Plan Sponsors and Plan Participants

20. Service Provider Fee Disclosure Rules “Covered Service Provider” disclosures with respect to a “Covered Plan” to a “Responsible Plan Fiduciary” Effective July 1, 2012

21. Service Provider Fee Disclosure Rules Required Disclosures Initial Disclosures Disclosures regarding Recordkeeping Services Investment Disclosures – Fiduciary Services Investment Disclosures – Recordkeeping and Brokerage Services

22. Service Provider Fee Disclosure Rules “Take-Aways” Disclosure obligations fall on service provider, but since regulations fall under prohibited transaction exemption, penalties are on plan’s fiduciaries DOL – misunderstandings/confusion is responsibility of plan’s fiduciary

23. Participant Fee Disclosure Rules Notices Annual Notice (calendar year plans -- first one due 8/30/2012) Quarterly Notice (calendar year plans -- first one due 11/14/2012) Other Disclosures Electronic Methods Permitted

24. Participant Fee Disclosure Rules Required Disclosures Plan-Related Information Investment-Related Information Comparative Data

25. Participant Fee Disclosure Rules Recipients - those with the right to direct investment of account which includes participants (eligible employees even if not yet participating), beneficiaries and alternate payees Covered Plans – defined contribution plans, participant-directed investment of accounts, covered by ERISA

26. Participant Fee Disclosure Rules Consequences of Failures Responsibility of Plan Administrator Failure is a Breach of Fiduciary Duty

27. Participant Fee Disclosure Rules Plan Sponsor Checklist Identify participant-directed defined contribution plans Coordinate with service providers Analyze provider contracts Consider potential participant questions and reactions to the new disclosures

28. Title Goes Here Employee Benefit Plans and Electronic Communications

29. IRS – Treasury Regulation §1.401(a)-21 Standards by which certain benefit plans may use electronic media to provide applicable notices or for individuals to mark participant election. Does not apply to any notice, election, consent, disclosure, or obligation required under the provisions of Title I or IV of ERISA over which the DOL or PBGC has interpretive and enforcement authority (i.e. SPDs, SARs, notices related to suspensions of benefits and COBRA notices).

30. Application of Treasury Regulation §1.401(a)-21 Applies to the following: Retirement plans under IRC §§401(a), 403(a), 403(b), 408(k), 408(p), and 457(b); Individual retirement plans, including Roth IRAs under IRC §408(q); Accident or health plans/arrangements under IRC §§401(a)(3) and 105; IRC §125 cafeteria plans; Educational assistance plans under IRC §127; Qualified transportation benefit programs under IRC §132; Archer MSAs under IRC §220; and HSAs under IRC §223.

31. Applicable Notice Any notice, report, statement, or other document required to be provided to a recipient under a retirement plan, employee benefit arrangement, or individual retirement plan. Includes: IRC §402(f) Rollover Notices; ERISA §204(h) Notices; Distribution Notices under IRC §411(a)(11); 401(k) Safe Harbor Notices; and QJSA and QPSA notices, elections, and consents.

32. Requirements for Using Electronic Media to Provide Notices and Making Elections Reasonably designed to provide the information to a recipient in a manner no less understandable to the recipient than if provided on a written paper document; and alert the recipient, at the time the applicable notice is provided, of the significance of the information in the notice (including subject matter of the notice), and provide any instructions needed to access the notice, in a manner that is readily understandable and accessible as an applicable notice provided using a paper document.

33. Requirements for Using Electronic Media to Provide Notices and Making Elections If an electronic record of an applicable notice or participant election is not maintained in a form that is capable of being retained and accurately reproduced for later reference, the legal effect, validity, or enforceability of such electronic record may be denied.

34. Two Approved Methods Two methods to provide an applicable notice to a recipient through the use of electronic media: 1.The Consumer Consent Method, and 2.The Alternative Method.

35. Requirements of the Consumer Consent Method 1.Consent by the participant to receive the communication electronically before the applicable notice is provided to the participant using an electronic medium. 2.Cannot be provided through the use of oral communication or a recording of an oral communication.

36. Requirements of the Consumer Consent Method Continued… 3.Prior to consent, the participant must receive a disclosure statement that states: ● Right to receive the notice in non-electronic form; ● How to obtain a paper copy of the applicable notice and whether there is a fee for such copy; ● The participant’s right to withdraw consent, the procedure for withdrawing consent, and any conditions, consequences, or fees in the event of withdrawal;

37. Requirements of the Consumer Consent Method Continued… ● Whether the consent applies only to particular transaction or to other identified transactions that may be provided or made available during the course of the parties’ relationship; ● A description of the procedures to update information needed to access the recipient electronically; and ● The hardware and software requirements needed to access and retain the applicable notice.

38. Requirements of the Alternative Method 1.At the time the applicable notice is provided, the recipient must be advised that he/she may request and receive the applicable notice in writing on paper at no charge. 2.The recipient of the applicable notice must be effectively able to access the electronic medium used to provide the notice.

39. Using Electronic Media to Make a Participant Election Participant elections must satisfy the following requirements: The participant must be effectively able to access the electronic medium in order to make the participant election; The electronic system must be reasonably designed to preclude any person other than the appropriate individual from making a participant election; Participant has reasonable opportunity to review, confirm, modify, or rescind the terms of the election before it becomes effective; and Confirmation of the election through either a written paper documents or an electronic medium.

40. DOL – Labor Regulation §2520.104b-1 Generally applies to all documents required under Title 1 of ERISA (other than disclosures required under ERISA Parts 2 and 3, over which the Treasury has authority). Act as “Safe Harbors” and are not the only way a plan can satisfy the ERISA disclosure requirements. Cover communication from plans to employees, participants and beneficiaries only.

41. DOL – Labor Regulation §2520.104b-1 Documents covered under the DOL rules include: SPDs, SMMs, SARs; ERISA Section 404(c) Information for Participant Directed Accounts; Suspension of Benefit Notices; QDRO Notices; QMCSO Notices; COBRA Notices; and HIPAA Notices of Creditable Coverage.

42. DOL Safe Harbor – General Rules 1.Electronic system results in actual receipt of the transmitted information; 2.System protects the confidentiality of personal information; 3.Prepared in a manner that is consistent with the style, format and content requirements of ERISA; 4.Electronic or paper notice provided to the individual that describes the significance of the electronic document when it is not reasonably evident as transmitted; 5.Upon request, the individual is provided a paper version of the electronically furnished document.

43. Two Approved Groups of Individuals The DOL rules apply to two groups of individuals: 1.“Integral Employees”  Effectively access electronic documents “at any location where a participant is reasonably expected to perform his/her duties as an employee” and for whom “access to the electronic information system is an integral part of those duties.”  Includes employees who work from home.  Does not include participants whose only access is to a shared workstation or kiosk, if use of the electronic system is not an integral part of job.

44. Two Approved Groups of Individuals Continued… 2.“Consent Employees”  Affirmatively consent to receiving documents electronically.  Before providing consent, individual must be given a clear and conspicuous notice stating: Consent will apply to the named documents; Consent may be withdrawn at any time; The procedures to withdraw consent or to change an address for receiving electronic information; The right to request paper version (and applicable charge); and The software and hardware requirements to access and retain the documents.  Consent must demonstrate ability to access.

45. About Ogletree Deakins Provide counsel to management in every area of labor and employment law Over 600 attorneys in 40 offices nationwide Represents a diverse range of clients, including more than half of the Fortune 50 corporations in the United States.

46. Practice Areas Labor and Employment Affirmative Action Programs and OFCCP Compliance Employee Benefits Class Action Defense Construction Industry Environmental Governmental Affairs Immigration International Practice Group Litigation Ogletree Deakins Learning Solutions Records Retention and E-Discovery Practice Group Workplace Safety and Health

47. QUESTIONS If you have questions, call (216) 241-6100 Or email at: Jason.Rothman@ogletreedeakins.com