Multiemployer Plans

Our ML BeneHelp program recognizes that our employee benefits clients often need an extra pair of hands due to a variety of circumstances—both unforeseen and expected. Through ML BeneHelp, our senior benefits advisors are available for in-person or virtual temporary assignment to assist during crunch times (we expect these assignments would last no more than six months). These professional advisors, many of whom have more than 20 years of experience and have varied backgrounds that include working for corporate human resources/benefits departments, consulting firms, and other law firms (and some are nonpracticing lawyers), bring unique and substantial technical knowledge and practical experience to our benefits practice and clients.

The types of projects ML BeneHelp can assist with include, but are not limited to, the following:

• Drafting, reviewing, and amending plan documents, summary plan descriptions, and summaries of material modifications
• Drafting and reviewing participant communications and notices, including open enrollment materials
• Drafting, reviewing, and processing qualified domestic relations orders (QDROs) and qualified medical child support orders (QMSCOs)
• Conducting internal plan audits (document, operational, and dependent), and assisting with governmental agency audits
• Assisting with and reviewing Form 5500 filings 
• Running point between the client and outside vendors, including assisting with outside vendor RFPs
• Assisting with corrections filings under the Internal Revenue Service Employee Plan Compliance Resolution System (EPCRS) and the US Department of Labor Voluntary Compliance Program (VCP), as well as determination letter submissions
• Assisting with day-to-day administration issues, including benefits claims and appeals matters, enrollment questions, COBRA (and other continuation coverage) questions, tax withholding questions, and other matters
• Assisting with reductions-in-force voluntary severance programs to ensure that the programs and related documentation comply with ERISA, COBRA, tax rules, and plan documents
• Assisting with due diligence reviews and post-closing benefits integration related to mergers, acquisitions, and other transactions

Our senior benefits advisors regularly perform these services and others for health and welfare and retirement plans. They are available to be dedicated to your projects—whether from the client’s offices, remotely, or a combination thereof.

ML BeneHelp services are priced in a variety of ways, including on a fixed-fee basis, which account for the scope of work and whether the senior benefits advisors are working at the client’s location or remotely from their Morgan Lewis offices (or some combination thereof).

Pitfalls and liabilities related to investment options are an increasing concern for multiemployer funds. When it is time to select and contract with investment managers, our lawyers offer informed advice related to sophisticated investment vehicles and investment management agreements. Our team reviews and negotiates investment management agreements and other investment arrangements to ensure that those documents comply with the requirements for ERISA-covered plan investments.

We also have experience with a wide array of investment options, including hedge funds, real estate investment trusts (REITs), private equity placements, qualified professional asset manager (QPAM) and non-QPAM real estate investments, convertible bond investments, and international funds, among other investment options.

We often collaborate with our ERISA fiduciary duty practitioners to offer a full spectrum of investment counseling services.

Our lawyers provide comprehensive service to multiemployer health and welfare funds. We partner with these funds to help them comply with regulations such as the Consolidated Omnibus Budget Reconciliation Act (COBRA), HIPAA (regarding nondiscrimination and portability), HIPAA and the Health Information Technology for Economic and Clinical Health (HITECH) Act (regarding privacy and security), the Mental Health Parity and Addiction Equity Act (MHPAEA), the Genetic Information Nondiscrimination Act (GINA), and the ACA.

Our diverse team also assists clients with the day-to-day management and operation of health and welfare funds including:

• Assisting with the adjudication of ERISA claims and appeal
• Negotiating administrative services agreements with third-party service providers, including third-party administrators, insurers, and prescription benefit managers
• Drafting, reviewing, and revising plan documents, summary plan descriptions (SPDs), summaries of material modifications (SMMs), summaries of benefits and coverage (SBCs), and other participant communications
• Helping to exercise subrogation rights
• Assisting with the administration of retiree health benefits

We also advise on funding arrangements such as voluntary employees’ beneficiary association (VEBA) trusts and offer informed advice related to investment vehicles for such funds.

Since the passage of the ACA in March 2010, our lawyers have led multiemployer health fund clients and their contributing employers through the maze of US federal regulations and related guidance. We work with health plans on issues that relate to grandfathered status, mandated benefit changes, and compliance with the 90-day waiting period rule. We also help clients prepare and distribute participant notices and SBCs. We advise on applicable taxes and fees, such as Patient-Centered Outcomes Research Institute (PCORI) fees, temporary reinsurances fees, and the so-called Cadillac tax.

Our lawyers help clients to distinguish between ACA obligations that apply to contributing employers versus multiemployer plans, and assist each type of client with compliance with the requirements particular to it. We help employers understand how coverage provided through multiemployer plans can be used to meet the employers’ obligations under the shared responsibility rules. We advise employers on the steps they need to take to confirm that their multiemployer coverage meets ACA guidelines.

Our team also helps contributing employers and multiemployer health funds understand their respective obligations and the related potential delegations under IRC Sections 6055 and 6056 reporting requirements (Forms 1094-B, 1094-C, 1095-B, and 1095-C). 

We have been at the forefront of advising contributing employers to multiemployer funds since the MPPAA was passed in 1980. For these employers, we provide strategic advice in collective bargaining negotiations; evaluate risk for minimum funding and withdrawal liability; represent employers facing withdrawal liability; assist with delinquent contribution claims; and advise about the allocation of responsibility between multiemployer funds and contributing employers under the ACA.

We advise employers engaged in buying or selling businesses regarding multiemployer plan issues that arise in those transactions, such as funding deficiencies or potential withdrawal liability. We help our clients to determine the additional risk they take on when a transaction involves multiemployer plan contributions, and how to be compensated for or minimize those risks.

Our ERISA litigation team represents multiemployer funds in arbitration (including deadlock arbitrations) and in court in cases such as delinquent contribution disputes and withdrawal liability matters, among others. We also help clients resolve contractual disputes, subrogation actions, fiduciary-related matters, and issues that relate to choosing trustees.

In the context of withdrawal liability matters, we represent employers in arbitration and in court with challenging their status as an employer under ERISA, successorship liability in corporate transactions and in a third-party service provider context, mass withdrawal liability, claims of evade or avoid, sale of assets exemption, and withdrawal liability calculations. Over the years, we have handled hundreds of withdrawal liability matters.