Can a Postcard Furnish an SPD Solution?

According to an article from the November 15, 2010 issue of Deloitte’s Washington Bulletin (reported on BenefitsLink.com), the Department of Labor (DOL) “recently reaffirmed its long-standing position that ERISA plan administrators cannot satisfy their obligation to “furnish” summary plan descriptions (SPDs) simply by making them available to participants”. The DOL’s informal guidance was issued in response to a question posed by the American Bar Association’s Joint Committee on Employee Benefits earlier this year, according to the report.

The specific question posed was whether SPDs could be furnished by mailing a letter or postcard to all participants to let them know a new SPD is available and they can obtain a free copy by calling a telephone number and requesting one. The question stipulates that all participants have access to a telephone.

Deloitte reported that DOL’s answer was:

ERISA section 104(b)(1) provides that the plan administrator shall “furnish” an SPD automatically to each participant within 90 days of receiving benefits and, generally, every 5 years thereafter. With respect to the furnishing of SPDs, the general disclosure standards set forth in 29 C.F.R. § 2520.104b-1(b) require that the plan administrator use measures reasonably calculated to ensure actual receipt of the material by participants and beneficiaries. In addition, regulation section 2520.104b-1(b) requires that the SPD must be sent by a method or methods of delivery likely to result in full distribution.

The Department has long held the view that, where documents are required to be furnished to participants, it is not acceptable merely to make the documents available in a location frequented by participants. (See Preamble to regulation section 2520.104b-1(b)). Staff believes that the facts presented above are analogous to posting required disclosure materials in a location frequented by participants. Similar to posting an SPD, requiring participants to affirmatively seek out an SPD by placing a phone call is not a method likely to result in actual and full distribution of the SPD.

The DOL went on to explain that its rules relating to electronic distribution of SPDs and other plan materials do not apply in this situation because the SPD is not being distributed via electronic media.

More information is available at http://benefitslink.com/articles/guests/washbull101115b.html