Understanding ERISA. Health and Welfare Compliance Requirements for the Michigan Small Business Owner.

1. Understanding ERISA
Health and Welfare Compliance Requirements
for the Small Business Owner
This presentation is for educational purposes and is not legal advice.
If you need help understanding how these concepts apply to your business,
We recommend for you to speak with an experienced employee benefits attorney.

2. Understanding ERISA
ERISA Basics
The Employee Retirement Income Security Act of 1974 (ERISA) sets minimum standards for retirement and
health benefit plans operating in the private sector. ERISA does not require employer to establish a plan, but it
does require that those employers who do offer plans meet certain minimum requirements.
ERISA covers retirement, health and other welfare benefit plans including life and disability plans. ERISA also
requires that individuals and other fiduciaries who manage plans must meet certain standards of conduct and
provides for detailed requirements for disclosure of plans to both plan participants and the federal government.
Over the years, ERISA has been expanded to include additional health laws, including:
 COBRA – the Consolidated Omnibus Reconciliation Act of 1986 - that requires certain employers to allow for
continuation of coverage under their group health plan for employees and dependents under certain
circumstances.
 HIPAA – the Health Insurance Portability and Accountability Act of 1996 - which makes health plans more
portable and secure for employees.
 ACA – Affordable Care Act of 2010 – which, among many other things requires a Notice of availability of
Insurance Exchange and a Summary of Benefits and Coverage be made available.

3. Understanding ERISA
Health and Welfare Plans that ERISA applies to:
 Health and Major Medical plans
 Dental plans
 Long and Short Term Disability plans
 Group Life plans
 Section 125 plans
 Health Reimbursement Arrangements
 Prescription Drug plans
 Vision plans
 Mini-Med plans
 Most employee assistance programs
 Most wellness programs

4. Understanding ERISA
ERISA Exemptions:
 Government, Church and Other Statutory Exemptions - Church plans and plans maintained for
employees of local, state and federal employees are generally exempt from ERISA’s mandates.
Also exempt are programs maintained only to comply with state-law requirements for workers'
compensation, unemployment compensation, or disability insurance.
 Payroll Practice Exemptions - In order for the payroll-practice exemption to apply, any
payments must be paid out of the employer's general assets and must be paid to currently
employed individuals. Any use of insurance, pre-funding or making payments to former
employees can take an arrangement outside the exemption. Certain payments are exempt
from ERISA when made as part of the employer’s regular payroll practice. These include wages,
overtime pay, shift premiums, and holiday or weekend premiums; sick-pay or income
replacement benefits; and vacation, holiday, jury duty, and similar pay.
 Voluntary Plans Exemption - The exemption permits employees to pay premiums for a non-
employer endorsed program of voluntary plans through payroll deductions (but not pre-tax
deductions) and permits the employer to forward the deductions to the insurer. Under such an
arrangement, an employer allows an insurance company to sell voluntary policies to employees
who pay the full cost of their coverage, and the employer may not contribute toward the cost of
coverage. Additionally, the insurer may not compensate the employer for granting access to
the employee base at the workplace.

5. Understanding ERISA
The following slides provide a summary overview of specific
ERISA documents, notices, statements and other general
requirements for health and welfare plans.

6. Understanding ERISA
Plan Documents
Description: Plan Documents Required by: Date Required: Penalty:
Plan documents will vary by the type
of plan offered to plan participants.
Plan documents include:
 Summary Plan Descriptions
 Trust agreements
 Insurance contracts
Plan documents are required
of both fully-insured and self
insured plans.
Provided to plan participants
within 30 days of request.
Up to $110/day for failure to provide
plan documents in response to
request. Also potentially subject to
participant and DOL enforcement
actions. Intentional violation of
ERISA reporting and disclosure
obligations can result in criminal
penalties.
Failure to have plan documents may
also result in disqualification of
cafeteria plan tax benefits.

7. Understanding ERISA
Summary Plan Description
Description: SPD Required By: Date Required: Penalty:
The Summary Plan Description, or SPD, is the main vehicle for
communicating plan rights and obligations to participants and
beneficiaries. It is generally a summary of the material provisions
of the Plan and it must be written in a manner understandable to
the average Participant.
Information that must be included:
 Basic Plan information including Plan name, address and EIN
 Plan Administrator’s name, address and phone
 Type of Plan (health, life, dental, etc.)
 Plan Number, Plan Year and Eligibility Requirements
 Information regarding plan contributions and funding
 Information regarding claims and claim procedures
 Continued Coverage under COBRA and FMLA
 Special Enrollments
For a full listing of the contents for a completed Summary Plan
Description click here.
Click here for help creating a Summary Plan Description
A Summary Plan
Description is required
of both fully-insured
and self-insured plans.
A Summary Plan
Description must be
provided within 90
days after a
participant first
becomes covered or
within 120 days after
the plan first
becomes effective.
An updated
Summary Plan
Description must be
provided every 5
years if there have
been material
changes. If no
material changes
have been made,
then must
redistribute every
ten years.
$110 per day for failure to
provide upon request.
Also potentially subject to
participant and DOL
enforcement actions.
Intentional violation of
ERISA reporting and
disclosure requirements
can result in criminal
penalties.

8. Understanding ERISA
Summary of Material Modification and Summary of Material Reduction
Description: SMM/SMR Required by: Date Required: Penalty:
Unless an updated Summary Plan Description is provided, a Summary of
Material Modification (SMM) and/or Summary of Material Reduction
(SMR) is required to be provided to plan participants any time there is a
material modification to the plan or any time there is a change to the
information that is required to be provided in the Summary Plan
Description. The SMM and/or SMR is required of the plan administrator
of the company and it generally cannot be contracted to an insurance
carrier, third-party administrator or any other entity.
Material modifications/Reductions include, but are not limited to:
 New benefits offered
 Benefits being eliminated
 Changes to the way in which benefits are paid
 Termination of the Plan
Click here for sample language for the Summary of Material Modification
Click here for a sample language for the Summary of Material Reduction
A Summary of
Material
Modification is
required of
both fully-
insured and
self-insured
plans.
A Summary of Material
Modification must generally be
provided within 210 days after
the end of the plan year in which
a modification or change was
made.
A Summary of Material
Reduction must generally be
provided within 60 days after the
date the reduction was adopted.
If the change also affects
information described in a
Summary of Benefits and
Coverage, then the SMM/SMR
must be distributed 60 days
before the change goes into
effect.
$110 per day for
failure to provide
upon request.
Also potentially
subject to
participant and
DOL
enforcement
actions.
Intentional
violation of ERISA
reporting and
disclosure
requirements
can result in
criminal
penalties.

9. Understanding ERISA
Form 5500 and Summary Annual Report
Description: Form 5500 Required by: Date Required: Penalty:
Form 5500, the Annual Return/Report of Employee Benefit Plan, is
the form used to file an employee benefit plan’s annual information
with the Department of Labor. A plan administrator must report
certain plan information each year.
Click here for additional information and a link to Form 5500
The Summary Annual Report (SAR) is provided to plan participants
and summarizes key information from the 5500.
Self-insured plans and
plans with 100 or
more participants
must file a 5500. Plans
with less than 100
participants at the
beginning of a plan
year that are either
unfunded, fully-
insured or a
combination of both
are not required to file
form 5500.
Funded plans and
Insured plans with
over 100 participants
must distribute a SAR
Due to the Employee
Benefits Security
Administration (EBSA) by
the last day of the 7th
month following the end of
the plan year.
Distribute within 2 months
after the 5500 filing
deadline.
Up to $1,100 per
day for failure to file
or filing an
incomplete/deficient
5500. Intentional
violation of ERISA
reporting and
disclosure
requirements can
also result in
criminal penalties.
Up to $110 per day
for failure to provide
the SAR upon
request. Also

10. Understanding ERISA
Fiduciary Responsibilities and Fidelity Bonds
Description: Fiduciaries and Fidelity Bonds Required by: Date Required: Penalty:
Fiduciaries - ERISA includes a code of conduct for individuals known
as fiduciaries. The primary purpose for identifying fiduciaries is to
determine who has responsibility and liability for each aspect of
plan administration and management. Principal duties of a plan
administrator include:
 To exercise discretionary authority or control with respect to the
management of the plan
 Has discretionary authority or responsibility in the
administration of the plan
Fidelity Bonds – Every fiduciary and every other person who handles
plan assets or other property is required to be bonded. The
required bond is equal to a minimum of 10% of the funds handled
during the immediate prior year, with a minimum of $1,000 and
maximum of $500,000.
Click here for additional information on Bonding Requirements
Bonding is required
of both fully-insured
and self-insured
plans.
The fidelity bond must be in
place at the beginning of the
plan year.
Fiduciaries may be
held liable for losses
to the plan. Also
potentially subject
to ERISA
enforcement
actions.

11. Understanding ERISA
COBRA General Notice
Description: COBRA General Notice Required by: Date Required: Penalty:
COBRA, the Consolidated Omnibus Reconciliation Act of 1986,
applies to all private-sector group health plans maintained by
employers that have at least 20 employees on more than 50 percent
of its typical business days in the previous calendar year. Both full
and part-time employees are counted to determine whether a plan
is subject to COBRA. Each part-time employee counts as a fraction
of a full-time employee, with the fraction equal to the number of
hours that the part-time employee worked divided by the hours an
employee must work to be considered full-time.
The plan must provide each covered employee, covered spouse and
covered dependent (if any) with written notice of their individual
rights to continue coverage under the plan.
Please click here to view a sample Department of Labor Initial
Notification (General Notice)
Click here for additional information regarding employer COBRA
responsibilities and administration.
COBRA general
notices are required
of both fully-insured
and self- insured
plans.
The COBRA general notice
must be provided within 90
days of the coverage effective
date.
Up to $110 per day.
Failure to provide
notices may result in
inability to enforce
deadlines against
employees and
qualified
beneficiaries.

12. Understanding ERISA
Notice of Special Enrollment Rights and Women’s Health Act
Description: Special Enrollment Rights Required by: Date Required: Penalty:
If an employee or dependent loses eligibility for coverage under any
group health plan, or if employer contributions toward group health
plan coverage cease, a special enrollment opportunity may be
triggered. For example, if an employee's spouse declined coverage
when previously offered due to coverage under her own employer's
plan, she and the employee must be offered a special enrollment
opportunity when her coverage ceases under that plan or her
employer terminates contributions to that plan.
Click here for a sample Special Enrollment Rights notice
Special Enrollment
Right notices are
required of both
fully-insured and
self-insured plans.
Generally, the notice will be
part of any plan documents
including the Summary Plan
Description. If it is not
included in the plan
documents, it must be
provided when the employee
has the opportunity to enroll.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.
Description: Women’s Health Act Required by: Date Required: Penalty:
Plans that provide medical or surgical mastectomy benefits must
provide plan participants with notice that these benefits are
available.
Click here for sample language and more information about the
Women's Health Act
notices are required
of both fully-insured
and self-insured
plans.
Upon enrollment and
annually thereafter.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise

13. Understanding ERISA
Newborn and Mother’s Health Protection
Description: Newborn and Mother's Health Protection Required by: Date Required: Penalty:
For plans that offer coverage for maternity and/or newborn infants,
the plan must provide a statement that the hospital stay for a
vaginal delivery in not less that 48 hours and for a cesarean section
delivery, not less that 96 hours.
Click here for sample language and more information about the
Newborn and Mother’s Protection Act
Newborn and
Mother’s Health
Protection Act
notices are required
of both fully-insured
and self insured
plans.
Generally, the notice will be
part of any plan documents
including the summary plan
description.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.

14. Description: Mental Health Parity Act Required by: Date Required: Penalty:
The Mental Health Parity and Addiction Equity Act of 2008 prohibits
a plan from placing annual or lifetime limits, co-pays, and
deductibles or visit limits applicable to mental health or substance
use disorder benefits that are more restrictive than the
requirements or limitations applied to all medical/surgical benefits.
MHPAEA supplements prior provisions under the Mental Health
Parity Act of 1996 requiring parity with aggregate lifetime and
annual dollar limits for mental health benefits. Upon request, plan
administrator (or health insurance issuer) must make available the
criteria for medical necessity determinations for mental health or
substance use disorder benefits to current or potential participants,
beneficiaries, or contracting providers upon request.
Click here for sample language and more information about the
Mental Health Parity Act.
Mental Health Parity
Act applies to both
fully-insured and self
insured plans.
Generally, plan documents
and summary plan
descriptions of mental health
benefits must be consistent
with mental health parity
requirements. Criteria for
medical necessity
determinations must be
available upon request.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.
Notice of Mental Health Parity Act
Understanding ERISA

15. Understanding ERISA
Children’s Health Insurance Program (CHIP) Notice
Description: CHIP Required by: Date Required: Penalty:
Employees must be notified of possible opportunities for premium
assistance under Medicaid and the state’s Children’s Health
Insurance Program for the employee and the employee’s dependent
children.
Click here for a sample CHIP model notice.
Employers that
maintain a group
health plan in all
states that provide
medical assistance
under Medicaid or
CHIP – includes
Michigan.
Upon enrollment and
annually thereafter.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.

16. Understanding ERISA
Summary of Benefits and Coverage and Uniform Glossary of Terms
Description: SBC Required by: Date Required: Penalty:
The Affordable Care Act requires that insurance companies and
group health plans provide plan participants documentation
detailing, in plain language, simple and consistent information
about health plan benefits and coverage. This Summary of Benefits
and Coverage is designed to help participants better understand the
coverage they have and allow them to compare different coverage
options. It will summarize the key features of the plan or coverage,
such as the covered benefits, cost-sharing provisions, and coverage
limitations and exceptions.
Click here for a sample completed Summary of Benefits and
Coverage.
Click here for a Glossary of Uniform Glossary of Terms.
Summary of Benefits
and Coverage and
the Uniform Glossary
of Terms are
required of both
fully-insured and
self-insured plans.
A Summary of Benefits &
Coverage must be provided
to employers and individuals
“when shopping for
coverage, enrolling in
coverage, at each new plan
year, and within seven
business days of requesting a
copy from their health
insurance issuer or group
health plan."
$1,000 per failure;
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax)

17. Understanding ERISA
Notice of Insurance Exchange/Marketplace
Description: Exchange Notice Required by: Date Required: Penalty:
The Affordable Care Act requires employers covered by the Fair
Labor Standards Act to provide a notice to employees about the
availability/existence of the state's health insurance
exchange/marketplace.
Click here for a sample copy of the Notice of Insurance Exchange for
a company that offers an employee benefit plan
Click here for a sample copy of the Notice of Insurance Exchange for
a company that does not offer an employee benefit plan.
The Notice of
Insurance Exchange
is required of both
fully-insured and
self-insured plans.
Employers were required to
provide notice to current
employees by October 1,
2013. Additionally, employers
are required to provide
notice to new employees at
the time of hiring beginning
October 1, 2013.
No specific penalties
under FLSA;
potential breach of
ERISA fiduciary
duties

18. Understanding ERISA
Michelle’s Law
Description: Michelle’s Law Required by: Date Required: Penalty:
The purpose of Michelle’s Law is to avoid dependent children losing
group health coverage through a parent if they drop out of school
because of an illness. This law became effective Jan. 1, 2010, for
calendar year group health plans.
Michelle’s Law requires employer-provided health plans to continue
coverage for an employee’s dependent child who is a college
student when they take a “certified medically necessary leave of
absence.” The extension of eligibility is to protect group health
coverage of a sick or injured dependent child up to one year.
Click here for sample language and more information regarding for
Michelle’s Law.
Michelle’s Law
applies to both fully-
insured and self-
insured plans.
Generally, Michelle’s Law
notice will be made through
the Summary Plan
Description.
Additionally, A group health
plan or issuer must include
with any notice regarding a
requirement for certification
of student status for
coverage, a description of the
Michelle's law provision for
continued coverage during
medically necessary leaves of
absence.
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.

19. Understanding ERISA
Dependent Coverage to Age 26
Description: Dependents to Age 26 Required by: Date Required: Penalty:
The Affordable Care Act extends coverage up to age 26 for children
who are related to the Employee by birth, marriage, legal
guardianship, or legal adoption. Please note that as of September
23, 2010, dependent coverage up to age 26 is no longer limited by
financial dependency, marital status, or enrollment in school.
Click here for a sample copy of the notice regarding eligibility to age
26.
Group health plans
(but excluding
excepted benefits
such as separate
dental and vision
plans and most
health FSAs).
$100 per day of
noncompliance for
each individual to
whom the failure
relates (IRS excise
tax). Also potentially
subject to ERISA
enforcement
actions.

20. Understanding ERISA
Continuing Coverage Under FMLA
Description: FMLA Required by: Date Required: Penalty:
The provisions of Family Medical Leave Act of 1993 (FMLA)
apply to the Plan during any calendar year when the
Employer is deemed a “Covered Employer” by employing 50
or more employees (including part-time employees) each
working day during 20 or more calendar weeks in the
current or preceding calendar year.
The Family and Medical Leave Act (“FMLA”) provides certain
employees with up to 12 weeks of unpaid, job-protected
leave per year. It also requires group health benefits to be
maintained during the leave.
Click here for more information regarding the Family and Medical
Leave Act of 1993
The Family and
Medical Leave Act
applies to both fully-
insured and self-
insured plans.
For employers subject to
FMLA, the “Employee Rights
and Responsibilities Under
the Family and Medical Leave
Act” must be displayed or
distributed by the employer.
This notice summarizes the
major provisions of the FMLA
and tells employees how to
file a complaint.
Subject to ERISA
enforcement
actions.

21. Understanding ERISA
HIPAA Privacy Policies and Practices (need some help here to make this useful)
Description: HIPAA Required by: Date Required: Penalty:
The Health Insurance Portability and Accountability Act of 1996
(HIPAA) requires health plans to establish written polices and
procedures to safeguard information about plan participants,
generally referred to as Protected Health Information (PHI), and
provide participants with a Notice of Privacy Practices explaining how
the plan may use and disclose PHI. The extent of an employer’s
HIPAA compliance burden as the health plan sponsor will depend
upon the degree to which the employer/plan sponsor obtains PHI to
administer the plans.
If a health plan is a fully-insured plan, then the employer/plan
sponsor may not need to obtain PHI aside from summary health
information and enrollment/disenrollment information. Under those
circumstances, the majority of HIPAA compliance rests with the
insurer and not the employer/plan sponsor.
Full compliance
required for
employers
sponsoring self-
insured health plan
benefits; employers
with only fully-
insured benefit
programs have
limited
responsibilities
Notice of Privacy Practices
must be provided to
employees at time of
enrollment and upon
request. Once every three
years, must either
redistribute the Notice or
send a reminder notice
explaining how someone may
obtain the Notice of Privacy
Practices.
Up to $1.5 million
per year for the
same type of
violation

22. Understanding ERISA
HIPAA Privacy Policies and Practices (continued) (need some help here to make this useful)
Description: HIPAA Required by: Date Required: Penalty:
Accordingly, if the employer/plan sponsor is “hands-off” with
respect to PHI, meaning the employer/plan sponsor receives no PHI
relating to this plan, then the employer will have limited duties
under the HIPAA Privacy and Security Rules.
If a health plan is self-insured or fully-insured and experience rated,
then the employer/plan sponsor will likely have access to PHI to
administer the plan. This is typically the case even if the employer
engages a TPA to handle the majority of the plan administration
functions.[9] In fact, employers often assume that they are not
obtaining PHI because all plan administration tasks are being
handled by the TPAs, and are frequently surprised to discover the
extent to which PHI is actually flowing to their staff. As a result,
employers/plan sponsors should conduct a gap analysis or risk
assessment to identify all points where PHI is obtained or
maintained within the company.
Full compliance
required for
employers
sponsoring self-
insured health plan
benefits; employers
with only fully-
insured benefit
programs have
limited
responsibilities
Notice of Privacy Practices
must be provided to
employees at time of
enrollment and upon
request. Once every three
years, must either
redistribute the Notice or
send a reminder notice
explaining how someone may
obtain the Notice of Privacy
Practices.
Up to $1.5 million
per year for the
same type of
violation

23. Questions?
SBAM members have access to a free compliance toolkit, special pricing on an ERISA
Compliance Assessment from Kushner & Company, and discounts on specific issue
assistance from Kushner & Company and/or Warner, Norcross & Judd.
Contact Kushner & Company at info@kushnerco.com / (269) 342-1700 for more
information.