I frequently am asked by plan sponsors and plan administrators about how to respond to a request for plan documentation. Under Section 104(b)(4) of ERISA, a plan administrator is obligated to provide certain information when requested by a participant or beneficiary. This documentation includes the summary plan description, the latest annual report (if the plan files one) and any bargaining agreement, contract or trust document under which the plan is established. Sounds fairly simple, right?
Well, under 502(c), there is a $110 a day penalty for failing to provide the documentation within 30 days when requested, so there are some timeliness requirements to the response, and there the penalty associated with not complying with the request. The 104(b)(4) section allows for a reasonable charge for copies if requested. But who can request them? The term "participant" or "beneficiary" is not clearly defined in these sections. Well, generally, we know that a participant or beneficiary is someone who participates in the plan or is entitled to benefits under the terms of the plan. But it may also be someone who has a "colorable claim" to benefits. Perhaps an ex-spouse who thinks they are entitled to life insurance benefits. Or perhaps a step-child who thinks they meet the definition of a dependent. So it is important to consider who is requesting the information and not just their actual status, but their possible status as well.
Also, the request can come from an attorney. There is an old DOL opinion letter that suggests that since the statute says the request has to come from the participant or beneficiary, a request from an attorney does not trigger the obligation to comply. But more recent case law has considerably blurred that line so that a request from an attorney for a participant or beneficiary made in good faith should elicit a response. Further, while the statute says the request has to be made to the administrator, an employer, as plan sponsor, should not assume that it is free from compliance because it has outside administration. A lot of cases have been litigated over whether that fiduciary status is sufficient to require an employer to provide documentation. Simply put, the risk associated with penalties and litigation over failing to provide documentation seems to clearly favor erring on the side of giving documents when requested.
In sum, plan sponsors (and administrators) should collect the required documentation, keep it in a nice folder and be prepared to send it out on request. Set a reasonable fee in advance and apply it uniformly. Make sure to comply within 30 days and err on the side of providing the documentation to anyone with a colorable claim to participant or beneficiary status. And if you have any questions, contact your attorney at Fox Rothschild for guidance.
Used with permission from Fox Rothschild LLP. Keith R. McMurdy is an employee benefits attorney at the firm’s New York City office. To contact the author:
