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Employee Benefits

The Benefits Team prepares individually-designed plan documents and SPDs for all types of deferred compensation and health and welfare plans. We prepare profit sharing plans, 401(k) plans, money purchase pension plans, traditional defined benefit plans, cash balance plans, 403(b) plans, 457(b) plans, nonqualified plans, cafeteria plans, health flexible spending arrangements, DCAPs, HSAs, severance plans, EAPs, educational assistance plans, trust agreements, medical reimbursement plans, and wrap-around plans. We prepare defined contribution plans with varying features, including safe-harbor 401(k) plans, automatic enrollment, and Roth contributions. We prepare all types of employer contribution formulas, including integration with Social Security, new comparability, and age- and service-weighted formulas. We monitor law changes and keep the plan documents up-to-date. We prepare all types of notices to participants, including 204(h) notices, QDIA notices, safe harbor notices, automatic enrollment notices, benefit forms, COBRA notices, certificates of creditable coverage, Medicare Part D notices, and privacy notices.
The Benefits Team regularly assists plan sponsors to ensure that their plans remain qualified under Code Sections 401(a), 403(b), or 457(b). We advise with respect to all qualification requirements, including issues involving eligibility, vesting, contributions, benefit accruals, limits on contributions and benefits, distributions, participant loans, design-based safe harbors, and nondiscrimination testing. We help plan sponsors comply with ERISA, including advising plan fiduciaries regarding their fiduciary duties under ERISA, assisting plan administrators with ERISA's reporting and disclosure requirements, advising regarding the prohibited transaction rules, and ensuring fiduciary protection for participant-directed investments.
The Benefits Team counsels plan sponsors regarding compliance with the new health care reform laws. We have counseled clients regarding the tax exclusion and required coverage of adult children, the grandfathered plan rules, the rules for collectively bargained plans and excepted benefits, the restrictions on lifetime and annual limits, preexisting condition exclusions, and rescissions, the required notices to participants, the mandates for new plans, the changes applicable to health fsas, and the new claims review process. We have helped plan sponsors prepare the application for the early retiree reinsurance program.
The Benefits Team has assisted several plan sponsors in connection with IRS and DOL audits of their plans. These audits involved issues of improper plan loans to participants, incorrect valuation of plan assets, breaches of fiduciary duty, and qualification defects. We prepare clients for the audit and assist in resolving any identified issues. As a result of our representation, plan sponsors have been able to avoid plan disqualification and civil penalties under ERISA.
The Benefits Team has helped plan sponsors with the correction of qualification failures in their qualified plans under EPCRS, through either self-correction or VCP filings. These failures included incorrect or untimely contributions, improper distributions, participation errors, testing failures, vesting failures, improper participant loans, and failures to amend. These corrections enabled the plans to maintain their qualified status.
We assist plans, sponsors, and administrators with all nature of benefit claims, appeals, arbitrations, and litigation. We have worked with administrators throughout the benefit claim process to determine the correct result under the plan documents. Where a claim has involved a policy matter not previously considered by the sponsor, we have advised the sponsor about options to amend the plan to address the policy matter and resolve the claim. We raised with one client the accumulating legal fees arising from third-party caused injury subrogation matters, resulting in the plan waiving its lien on the first $10,000 of any recovery from a third party and thereby avoiding the need for legal work on injuries costing less than that amount.
The Benefits Team has assisted plan sponsors to correct various fiduciary breaches, including the failure to timely deposit elective deferrals, failure to hold plan assets in trust, exclusive benefit violations, prohibited transactions, and failure to properly value plan assets.
Based on our representation of multiemployer pension plans, we are knowledgeable about all aspects of employer withdrawal liability. We have assisted plans and employers with estimates of withdrawal liability, including facilitating negotiations on withdrawal liability issues between clients and non-client plans and employers. We have advised clients about events that may trigger complete and partial withdrawals, mass withdrawals, and complete withdrawals for employers in the building and construction industry. We have helped plans comply with withdrawal liability rules and have litigated withdrawal liability claims on behalf of plans against withdrawn employers. We were successful in getting an adverse arbitration decision overturned in U. S. District Court and, in another case, obtaining a unanimous U. S. Supreme Court decision in favor of our client plans.
We have extensive experience with client ERISA pension plan investments in alternative vehicles, including hedge funds, infrastructure investments, distressed debt, real estate equity and mortgage funds, and all-asset and real asset funds. We have advised plan fiduciaries who were contemplating an investment in a real estate equity fund regarding a potential conflict of interest arising from the plan's preexisting investment in a mortgage income fund that would have provided construction funding to that same equity fund. The plan did not make the investment and avoided the losses incurred by the equity fund. Clients that followed our advice have avoided substantial investment losses that were incurred by other, similarly situated plans.
We have extensive experience with preparing and reviewing requests for proposals ("RFPs") to all types of employee benefit plan service providers and investment managers and preparing the agreements with those service providers. We have conducted RFPs for third-party administrators ("TPAs"), bank and trust company custodians, auditors, consultant/actuaries, and investment monitors, resulting in the successful retention of the service providers. We have reviewed many group health insurance company and TPA medical claims processing agreements. We have reviewed and negotiated the documentation for defined contribution plan family-of-funds providers and administrators. Most recently we have counseled plan trustees and sponsors on liability caps proposed by service providers.
The Benefits Team has completed several prohibited transaction excise tax filings for taxes resulting from the failure to timely deposit elective contributions, improper participant loans, nonqualifying employer securities, and improper valuations.
We have counseled group health plans and sponsors on COBRA health care continuation compliance since those requirements became effective and as they have changed, including administration of the premium subsidy introduced by the American Recovery and Reinvestment Act of 2009. We have prepared comprehensive packets for plan sponsors including all COBRA notices and providing internal procedures for plan administrators to follow to assure compliance. We have handled complicated COBRA compliance matters to the plan sponsor's satisfaction, including litigation, which involved large medical expense liabilities. We have assisted plan administrators with correcting defects in COBRA administration.
We have extensive experience with group health plans providing both same and opposite-sex domestic partner coverage, including before any such coverage was legally required for governmental employees or for employees of employers contracting with governmental entities. We advise employers on the law and tax issues involved with domestic partner coverage, including plan design, calculating imputed income for non-dependents, and discrimination. We have also advised plan sponsors concerning the assignability of ERISA benefits to domestic partners.
We have counseled group health plans and sponsors on HIPAA privacy compliance since the requirements became effective and as they have changed. We have prepared, reviewed, and negotiated HIPAA business associate agreements with business associates. We have prepared privacy notices and required plan document language. We have reviewed HIPAA compliance policies, prepared HIPAA privacy waivers, and advised clients regarding potential HIPAA privacy violations, with the result that no group health plan client has been found in violation of HIPAA. We have developed privacy breach notification procedures to comply with the HITECH Act.
We advise plan administrators and sponsors on the qualification of domestic relations orders ("QDROs" and "DROs") received by ERISA pension plans. We have prepared required QDRO procedures and sample QDROs, in turn reducing administrative and legal expenses when participants use the sample QDRO. We have counseled administrators and sponsors on post-death DROs, and in cases of multiple and competing DROs received other than in the order of entry. We regularly counsel plan administrators on how to respond to garnishments of and tax liens on participants' benefits, and we have dealt directly with the garnishor and the IRS to assure that the matters are handled correctly and efficiently.
We advise clients with respect to 409A compliance for their nonqualified deferred compensation plans.
The Benefits Team has advised government and church employers about state law requirements for non-ERISA benefit plans, such as domestic partner benefits, fiduciary duties, continuing health coverage, and privacy rules. We have advised small employers about state continuing health coverage requirements. We have advised plan sponsors with commercially-insured benefits about domestic partner coverage requirements for state insurance contracts. We have also advised plan sponsors about ERISA preemption of state laws.
The Benefits Team prepares applications to the IRS for all types of qualified defined benefit and defined contributions plans to obtain updated determination letters that the plans continue to be tax qualified. We have also prepared numerous Form 5310 filings with the IRS to obtain favorable determination letters on plan terminations.
The Benefits Team reviews and prepares Form 5500 annual report filings for various types of pension and welfare plans each year. In addition, we have helped many plan administrators prepare and submit late Form 5500 filings under the Department of Labor’s Delinquent Filer Voluntary Compliance Program. This program allows plan administrators to voluntarily submit delinquent Form 5500s for a specific fee in order to avoid the risk of much higher civil penalties under ERISA for failure to file timely Form 5500s.