Congratulations! You took an important step in your benefits compliance journey, and you invested in some plan documents. Now you're wondering what you do with this freshly minted stack of documents. Let's break it down.
Typically a wrap document package consists of two separate documents: a formal plan document and a summary plan description. Here's what to do with each.
Wrap Plan Document
The plan document part of the package need only be provided upon request by a plan participant (that is, an employee) or beneficiary (a spouse or dependent child) or by a former participant or beneficiary (for example, a COBRA continuation coverage beneficiary). Sometimes a healthcare provider will ask for copies of the plan document. Often the patient intake forms that employees and their dependents sign include language appointing the provider as the person's authorized representative, a special ERISA term that allows the provider to ask for documents and take other actions on behalf of the patient.
There's no requirement to distribute the plan document; just keep it in a safe place in case someone asks for it.
The summary plan description (SPD) part of the package (together with copies of the underlying benefit booklets or insurance contracts) is supposed to be provided to newly covered employees within 90 days of first becoming covered by one of the benefits under the plan. ERISA also requires that it be distributed to all benefits-eligible employees once every five years. Keeping track of an every-fifth-year requirement is next to impossible, so the best practice recommendation is to provide it annually during open enrollment along with all the other benefits documentation (benefits booklets, insurance policies, benefit summaries, etc.).
If you can take advantage of the DOL electronic delivery safe harbor—and given the volume of information that must be distributed, it's becoming increasingly harder for employers to not take advantage of it—distribution at open enrollment and in the new hire process is as simple as providing a notice telling employees where to get important documents (e.g., on a company intranet site or third-party enrollment platform).
If for whatever reason you can't take advantage of the DOL electronic delivery safe harbor, then you're left distributing paper copies by first-class mail, hand delivery or overnight courier.
For more information about the who/when/how of SPD distribution, including information about DOL's rules for electronic delivery, click here.
Notice to Employees: The Summary of Material Modification
Adopting a wrap doc (along with all of its legal jargon) is arguably a material change in the plan, and ERISA requires that benefits-eligible employees be given notice of material changes. That notice can be given in one of two forms: either by providing the wrap SPD itself, or by providing a separate summary of material modifications (SMM). Whether you distribute the SPD itself or a SMM, it must be provided within 210 days after the end of the plan year in which it was adopted. For calendar year plans, that's July 29 of the year following the year of adoption.
You Might Not Need a SMM After All
For many employers, there will be an open enrollment period that occurs at some point between adoption of a wrap doc and 210 days after the end of the year in which the wrap doc is adopted. If so, and you can take advantage of the DOL electronic delivery safe harbor, problem solved. Just "distribute" the SPD by providing a notice during open enrollment that tells employees where to get important benefits documents, such as on a company intranet site or third-party enrollment platform.
For more on the DOL electronic delivery safe harbor, click here.
Can't Use the DOL Electronic Delivery Safe Harbor, That's OK.
If you've got an open enrollment period between adoption of the wrap doc and the SMM deadline but you can't use the DOL electronic delivery safe harbor, then you'd just include a short SMM in your open enrollment guide or annual notices packet. We've provided an example below.
No Open Enrollment Between Now and Then? That's OK, Too.
If between adoption of the wrap doc and the SMM deadline you won't have had open enrollment, no worries; just provide a SMM. It doesn't have to be long or complex, and it could be combined with something else you're distributing such as a summary annual report (SAR).
Here is a simple example of a wrap doc SMM:
"Effective [INSERT EFFECTIVE DATE OF WRAP SPD] the Company adopted a new form of plan document for the [INSERT PLAN NAME], including a new form of summary plan description. The new plan document includes new and different terms that may affect the rights and obligations of employees and their dependents including, but not limited to, powers and duties of the Plan Administrator, subrogation, plan funding, assignment of benefits (including assignments to healthcare providers), tax consequences of participation in the plan and other general terms and conditions. For questions concerning these new terms and conditions, or to obtain a copy of the new plan document or summary plan description, contact [INSERT COMPANY HR CONTACT INFORMATION]."
Happy to Help
If you'd like assistance complying with ERISA's notice and disclosure requirements, we're happy to do so. Just drop us a note or ping us on the in-app messenger.