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CCH® PENSION AND BENEFITS — 05/29/09

EBSA semiannual regulatory agenda addresses mental health parity

The Employee Benefits Security Administration (EBSA) has released its semiannual regulatory agenda, which outlines regulations that have been selected for review or development during the next year, as well as any regulations that have been finalized during the last six months.

Prerule and proposed rule stages

The prerule and proposed rule EBSA agenda items are:

• The review of the plan assets-participant contributions regulation in accordance with section 610 of the Regulatory Flexibility Act;
• The development of regulatory guidance pursuant to ERISA §712, as amended by the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (P.L. 110-343);
• Proposed regulations implementing section 508 of the Pension Protection Act of 2006 (PPA; P.L. 109-280), which requires plans subject to ERISA to automatically provide participants and certain beneficiaries with individual pension benefit statements; and
• Proposed amendments that would update the electronic disclosure safe harbor at ERISA Reg. §2520.104b-1(c) to reflect events that have occurred since its initial publication (including advances in technology), recently enacted regulations under the Internal Revenue Code, and
• changes to the disclosure requirements under Title I of ERISA pursuant to the PPA.

Final rule stage

The final rule EBSA agenda items are:

• Additional regulatory guidance regarding the health care access, portability, and renewability provisions of the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191), including amendments made by the Children’s Health Insurance Program Reauthorization Act of 2009 (P.L. 111-3), provided concurrently by the DOL, the Treasury Department, and the Health and Human Services Department;
• An EBSA rule amending the regulation that defines when participant moneys paid to or withheld by an employer for contribution to an employee benefit plan constitute “plan assets,” including the establishment of a safe harbor period of a specified number of business days during which certain moneys that a participant pays to, or has withheld by, an employer for contribution to a plan would not constitute “plan assets;”
• Regulatory guidance clarifying certain issues relating to the timing and order of domestic relations orders under ERISA §206(d)(3);
• An EBSA rule implementing section 501 of PPA, which amended ERISA §101(f) to require that defined benefit plan administrators provide participants and other parties with annual funding notices, and implementing section 503(c) of PPA that amended ERISA §104(b)(3) regarding summary annual reports for defined benefit plans;
• An EBSA rule requiring multiemployer plan administrators to provide upon written request certain actuarial, financial, and funding-related documents to participants and other parties within 30 days, pursuant to requirements of section 502(a)(1) of the PPA; and
• Regulatory guidance that will provide clarification regarding the prohibition under Genetic Information Nondiscrimination Act of 2008 (GINA) (P.L. 110-233) against discrimination in group premiums based on genetic information, GINA’s limitations on genetic testing, its prohibition on collection of genetic information, and its new civil monetary penalties under ERISA.

Long-term actions

The items in the EBSA’s long-term actions are:

• A proposed rule that sets forth standards for determining “adequate consideration” under ERISA §3(18) for assets other than securities for which there is a generally recognized market;
• A proposed rule that will clarify and improve the information, including information about fees and expenses, provided to participants and beneficiaries in participant-directed individual account plans to help them make informed investment decisions; and
• A proposed amendment to regulations under ERISA §408(b)(2) that will ensure that plan fiduciaries have access to information necessary to determine whether an arrangement with a party in interest is “reasonable” within the meaning of the statutory exemption for contracting or making reasonable arrangements for office space or services.

Completed actions

The items in the EBSA’s completed actions are:

• Regulations implementing section 601 of the PPA that added a prohibited transaction exemption for the provision of investment advice to participants in individual account plans. These regulations were finalized in January 2009, and then the effective and applicability dates of the final regulations were delayed in order to consider questions of law and policy raised by commenters;
• Final regulations under ERISA §502(c)(4) , reflecting amendments made by the PPA, that provide procedures for assessing civil penalties for the failure to disclose documents to participants and other parties as required by ERISA §101(j), ERISA §101(k) , ERISA §101(l) , or ERISA §514(e) (3); and
• The withdrawal of proposed regulations that provided a model notice for use by multiemployer defined benefit plans to notify participants and others that their plans are in critical funding status. The DOL’s obligation to provide a model notice was transferred to the Treasury Department by the Worker, Retiree, and Employer Recovery Act of 2008 (P.L. 110-458).

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