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ERISA: Put New Teeth Into Plan Document Requests with 1024(b)(4)

One of the keys to properly defending against an asserted subrogation or reimbursement claim from an ERISA plan is making requests to the plan administrator.  ERISA places certain responsibilities upon the plan administrator to assist with the proper management of ERISA qualified employee welfare-benefit plans and to promote communication with the plan beneficiaries. One of the major responsibilities of the plan administrator, as to dealing with the providing of information to beneficiaries, is contained in 29 U.S.C. 1024(b)(4).

This section of the statute deals with requests for information made upon the plan administrator:

29 U.S.C. 1024(b)(4)– The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated.

In attempting to determine the existence and validity of the purported ERISA subrogation or reimbursement claim, obtaining the items listed in 29 U.S.C. 1024(b)(4) is of the utmost importance.  Attorneys should make a formal request under 29 U.S.C. 1024(b)(4) as the requested documents will establish the funding status, identify the plan sponsor, and establish the limits of the health plan’s recovery rights. However, attempting to obtain all of these documents can be fruitless and very frustrating.  The U.S. District Court for North Carolina dealt with this issue in Strickland v. AT&T Benefit Plan, 2012 WL 4511367 (W.D.N.C.). In this case the court ordered the plan to produce its “plan document,” recognizing that terms of a Summary Plan Description are not, in and of themselves, enforceable under Cigna v. Amara, 131 S.Ct. 1866.  You can use this case to your advantage with ERISA plan administrator or recovery agent.

The ERISA statute mandates that the Summary Plan Description be written in an understandable manner so as not to be confusing to the beneficiary.

29 U.S.C. § 1022(a) – [The SPD] shall be written in a manner calculated to be understood by the average plan participant, and shall be sufficiently accurate and comprehensive to reasonably apprise such participants and beneficiaries of their rights and obligations under the plan.

In Cigna v. Amara the Supreme Court ruled that “taken together we conclude that the summary documents, important as they are, provide communication with beneficiaries about the plan, but that their statements do not themselves constitute the terms of the plan” This language seems to make it clear that under 29 U.S.C. 1024(b)(4) the court would find that the plan administrator has an obligation to produce the Master Plan Document (MPD) as well as the Summary Plan Document (SPD).

Typically a claim summary and a SPD are the only documents returned to the requesting beneficiary, or their attorney following their 29 U.S.C. 1024(b)(4) request.  In light of the recent string of cases following Cigna v. Amara, which speak to the need to compare the SPD to the MPD, the plaintiff attorney should insist that the plan administrator is required to provide both under 29 U.S.C. 1024(b)(4).(See Also, McCravy v. Metropolitan Life Ins. Co., Nos. 10–1074, 10–1131, 2012 WL 2589226 (4th Cir. Jul. 5, 2012); Skinner v. Northrop Grumman Retirement Plan B, 673 F.3d 1162 (9th Cir.2012); Israel v. Prudential Ins. Co. of Am., No. 7:11–793–TMC, 2012 WL 3116544, at *5 (D.S.C. July 31, 2012)).  In fact, the clear language of 29 U.S.C, 1024(b)(4) requires that “any…contract or other instrument under which the plan is establish or operated” be provided to the requesting beneficiary.

Under ERISA 502(a)(3), the self-funded ERISA qualified health plan only has the authority to enforce “the terms of the plan.” The cases cited above make it clear that to determine the “terms of the plan” the MPD must be compared with the SPD in order to establish the obligations of the beneficiary.  It logically follows that the plan beneficiary must have the MPD to do this evaluation.  The mechanism for the beneficiary to obtain these documents is 29 U.S.C. 1024(b)(4), so the educated plaintiff’s attorney will not agree that the plan administrator has complied with 29 U.S.C. 1024(b)(4) until he has possession of both documents.

These cases illustrate the need for the plaintiff attorney to make his 29 U.S.C. 1024(b)(4) requests early.  This will not only allow the early evaluation of the alleged ERISA plan’s recovery rights, but also begins the penalty timer.  It is our belief that failure to provide both the SPD and MPD within the 30 day time limit causes the $110.00 per day penalties under 29U.S.C. § 1132(c)(1)(b) & 29 CFR § 2575.502c-1 to begin.

Demand what your client is owed from the plan administrator.  Do not accept the SPD as “good enough” from the ERISA plan administrator or their recovery agent.  Use their lack of compliance as a tool to reduce the amount your client must pay back to the ERISA plan.  Put some teeth in your 29 U.S.C. 1024(b)(4) requests by starting the penalty timer ticking.

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