Question: What are the requirements for employers to provide ERISA documents upon receiving a written request?

Short Answer: Employers generally need to respond to a written request for certain ERISA documents within 30 days to avoid potential penalties of up to $110 per day. In many common written request situations, there is some level of ambiguity for employers to resolve as to which documents are subject to this mandatory disclosure requirement and which specific plan materials the employer should provide.

Starting Point: Documents That Must be Available Upon Written Request
ERISA §104(b)(4) sets forth a number of ERISA documents that the plan administrator must provide to a participant or beneficiary within 30 days upon receiving a written request:

• The latest summary plan description (SPD);

• The latest annual report (Form 5500);

• Any terminal report (final Form 5500 for terminated plan);

• The bargaining agreement (for a union multiemployer plan);

• The trust agreement (for a plan funded by a trust); and

• Any contract or other instruments under which the plan is established or operated.

Unlike most of the components surrounding ERISA disclosures, there are no DOL regulations directly addressing these requirements—other than a regulatory section addressing penalties for failure to comply. The result is employers are left to sift through a variety of other DOL guidance and court cases interpreting these requirements to understand how to apply these document request rules in practice.

The Players: The Plan Administrator = The Employer
In the vast majority of situations, the employer is the ERISA plan administrator. Employers sponsoring a single employer plan are the default ERISA “plan sponsor,” which in turn means they are the default ERISA §3(16) plan “administrator”. As the ERISA plan “administrator, the employer is directly responsible for responding to these ERISA document requests, regardless of their vendor relationships, funding status, etc.

The Players: Participants = Eligible Employees
ERISA §3(7) defines a “participant” to be any eligible employee or former employee who is or may become eligible for benefits. This includes enrolled employees, eligible (but not enrolled) employees, and COBRA participants who can make such written ERISA document requests.

The Players: Beneficiaries = Dependents
ERISA §3(8) defines a “beneficiary” to be a person designated by the participant or plan who is or may become entitled to benefits. This includes any eligible dependents (e.g., spouse, domestic partner, children) who can make such written ERISA document requests.

Mandatory Disclosure Applies Only to Written Requests
The requirement for employees to provide the listed ERISA documents applies only upon receipt of a written request from the employee or dependent. An oral request for the documents is not sufficient. As a practical matter, written communication is far easier now than in 1974 when these rules were enacted. Any email, for example, would suffice as a written communication.

Employers typically will only receive these types of written requests in the context of litigation, potential litigation, or some form of a claims dispute. Nonetheless, in theory an employee or dependent could request any of these documents in writing at any time—although they generally would have no interest in doing so.

Document Issues: Written Requests for the SPD
While a basic written request for the plan’s SPD may seem simple and straightforward for employers to address, it presents a few interesting and somewhat challenging nuances.

The Wrap SPD Incorporates Carrier/TPA Materials by Reference—Which SPD Materials to Provide?
Employers typically will use a wrap plan document and wrap SPD to work in tandem with the underlying insurance carrier and third-party administrator (TPA) materials (e.g., EOCs, policies, certificates of coverage, benefit summaries, etc.) for the health and welfare plan. The wrap plan document and wrap SPD approach serves multiple useful functions for employers.

• For more details: Why Have a Wrap Plan Document and Wrap SPD?

A request for the plan’s SPD is therefore best understood to encompass both the wrap SPD document and the carrier/TPA materials that are incorporated by reference. Merely providing the wrap SPD without the accompanying carrier/TPA materials is likely not sufficient to satisfy the document request, which could expose the employer to potential penalties to provide the full SPD as requested.

Wrap SPD Incorporates Multiple Benefits—Which Benefit Options to Provide?
The SPD will typically “wrap” around all of the carrier and TPA materials for each ERISA-covered health and welfare benefit offered by the employer, thereby creating one “mega wrap” umbrella plan (often plan 501). In the context of a request for the plan’s SPD, this can create some confusion as to which underlying carrier/TPA materials the employer has to provide.

Absent a request for additional information, it appears reasonable to include with the wrap SPD only those carrier/TPA materials for the benefit option at issue. For example, for an employee making a written request for the SPD in relation to an issue under the medical PPO plan option, an employer could reasonably provide with the wrap SPD only the medical PPO carrier/TPA materials–and not (unless otherwise requested) include the medical HMO/HDHP materials or other dental, vision, life, disability, etc. materials that are also components of the same consolidated ERISA health and welfare plan.

ERISA Requires Provision of Only Current SPD—Which Version of the SPD Materials to Provide?
The next issue arises from the fact that some ERISA document requests stem from matters related to benefits at issue from a prior year. While it is common for the wrap SPD to have gone unchanged for multiple years (generally there is only the requirement to provide a new one once every five years), the carrier/TPA materials often change each year. Yet the formal rules in ERISA §104(b)(4) require only that the employer provide the “latest” SPD—in other words, the version currently in effect.

This limitation likely stems from the fact that in 1974 it was a substantial burden for employers to provide SPD documentation as it generally involved finding records of (as well as printing and mailing) paper materials. In the modern era, providing a prior copy is generally as simple as a click to add another attachment. Employers should therefore at least attempt to make prior versions available upon request where the matter relates to a prior version of a document.

Document Issues: Plan TPA Contracts
ERISA §104(b)(4) includes the requirement that employers provide, upon written request, any contract under which the plan is established or operated. There has been much confusion over the years as to the scope of this requirement, particularly with respect to TPA contracts. This is in part because DOL guidance and court decisions have reached conclusions that do not always appear to be aligned.

The DOL Position: Narrow Scope of Mandatory Disclosure
The DOL guidance stems primarily from Advisory Opinion 97-11A, where the DOL clarified that the requirement to provide plan contracts upon receipt of a written request does “not necessarily encompass all contracts between a plan and third parties who render services to the plan” because it is “modified by the phrase ‘under which the plan is established or operated.’” The DOL therefore takes the position that only TPA contracts that “establish, amend or constitute part of an employee benefit plan…are subject to mandatory disclosure under section 104(b)(4).”

This DOL position is a narrow reading of the scope of where a TPA contract is subject to provision upon a written request. TPA contracts generally do not establish or amend a plan. Accordingly, under the DOL’s view, employers rarely have the requirement to provide a TPA contract—even when requested in writing.

Court Decisions: More Expansive Scope of Mandatory Disclosure
A number of court decisions appear to take a broader interpretation of the requirement to provide TPA contracts upon written request. Most recently, a court in 2024 imposed a $123,100 penalty on an employer for failure to provide a TPA contract when requested in writing by an employee.

In M.S. v. Premera Blue Cross, No. 22-4056 (10th Cir. 2024), at issue was whether the employer was required to disclose the administrative services agreement (ASA) between the employer Microsoft and the claims administrator Premera. The court found that the contract was both “established and operated” under the ASA—and thereby subject to mandatory disclosure—because it required participants to “submit claims to Premera (rather than Microsoft directly), thus ‘establish[ing]’ the Plan.”

The court also found that the plan “‘operate[s] according to the terms of Premera’s administration, as delegated by Microsoft to Premera in the ASA.” The court added that the employer was required to disclose the document “[b]ecause the ASA settles the relationship between Microsoft, Premera, and the Plan.” Courts came to similar conclusions in other cases (e.g., Grant v. Eaton Disability Long-term Disability Plan, Civil Action No. 3:10CV164TSL-FKB (S.D. Miss. Feb. 5, 2013); Mondry v. Am. Fam. Mut. Ins. Co., 557 F.3d 781 (7th Cir. 2009)).

If there is one universal truth about employer-sponsored major medical plans, it is that the employer never is the claims administrator. In other words, there are no self-administered major medical plans sponsored by employers. That means there is always an insurance carrier or TPA administering the claims. Under this court’s holding, it is likely that all such contracts are subject to the ERISA mandatory disclosure rules because participants submit claims to the TPA instead of the employer, and the contract outlines this operational delegation of services to the TPA.

On the other hand, a case in Ninth Circuit seems to more closely track the narrow DOL reading of the scope of the contractual disclosure mandate. In Hively v. BBA Aviation Benefit Plan, 331 F. App’x 510 (9th Cir. 2009), the court stated that the employer’s administrative services agreement (ASA) with United Healthcare (UHC) was not subject to disclosure because it “governs the relationship between UHC and [the employer], not the relationship between the plan participants and the provider.” The court concluded that such “[d]ocuments which relate only to the manner in which the plan is operated are not subject to disclosure.”

• Best Practice: Unfortunately, the guidance from the DOL and court rulings in this area is inconsistent. Given the general lack of clarity of the applicability of this requirement and the high potential penalty amounts for failure to comply, employers should strongly consider providing plan TPA contracts upon receipt of a written request.

Document Issues: Plan Document
Surprisingly, the ERISA §104(b)(4) does not specifically enumerate the plan document as one of the required disclosure items. Nonetheless, it is widely accepted in practice and case law that employers must provide the plan document upon receipt of a written request. Even though it is not specifically listed, the plan document clearly is one of the “other instruments under which the plan is established or operated” subject to mandatory disclosure.

At least one court case has directly addressed this issue. In Keogan v. Towers, Perrin, Forster Crosby, Inc., Civ. No. 02-865 (RHK/JSM) (D. Minn. May. 9, 2003), the employer argued it did not have to provide the plan document because it was a wrap plan document. Although the court agreed it could not find “any binding case law addressing the production of plan documents for ‘wrap plans,’” the court found that the plan document was nonetheless an instrument under which the plan is established or operated subject to ERISA §104(b)(4). The court imposed a fine of $64,900 for the 649-day period the employer failed to provide the plan document upon written request.

Employers should therefore ensure they provide the plan document upon receiving a written request. With respect to wrap plan documents—which virtually all employers utilize (or should utilize)—employers should follow the same approach to wrap plan document production as discussed with respect to wrap SPDs in the “Document Issues: Written Requests for the SPD” section above.

Documents That Typically Are Not an Issue to Provide
The Easy Documents: Forms 5500
The easiest requests for employers to respond to are for the Forms 5500. While in 1974 these records were relatively difficult to access, in the present day all Forms 5500 are easily accessible via the DOL EBSA EFAST website. That does raise the question “Why would anyone request a copy of the Form 5500?” Putting that aside, at least it is easy for the employer to download and provide upon any written request.

The (Usually) Inapplicable Documents: Bargaining and Trust Agreements
Most health and welfare plans are single employer plans that are not subject to a bargaining agreement and are not funded by a trust. Employers receiving a request for either of these documents where inapplicable should still respond to inform the requesting party that there is no such document for the plan.

Written Requests from Authorized Representatives Qualify
In many cases, the written request for documents received by the employer comes from a representative of the employer or dependent at issue. DOL guidance in Advisory Opinion 82-21A provides that employers must furnish documents to a third party in the same manner as an employee or dependent where the participant has authorized in writing the release of the information to such third party.

Enforcement: Up to $110/Day Penalty for Failure to Provide Requested Documents Within 30 Days
ERISA creates a private right of action for an employee or dependent where the employer fails or refuses to comply with a request for any information which the employer is required to furnish by ERISA §104(b)(4). If the employer does not comply with the request within 30 days, a court may (in its discretion) award damages of up to $110 a day from the date of such failure or refusal, and other relief as the court deems proper.

The J&J Case: Yet Another Reminder to Provide Requested Documents
Prescription drug prices were the focus of a recent class action lawsuit filed against Johnson & Johnson (“J&J”) as employer-plan sponsor of its group health plan. The complaint argued that J&J breached its fiduciary duty by failing to engage in a prudent and reasoned decision-making process that would have drastically lowered the cost of prescription drugs in general and generic-specialty drugs in particular, and would have resulted in other cost savings for the plan. The allegation was that a fiduciarily prudent approach would have saved the plan and employees millions of dollars. The case has been the subject of intense public scrutiny.

For more details:

• J&J Case Practical Considerations: The Core Four ERISA Fiduciary Duties (Part 1)

• J&J Case Practical Considerations: The Core Four ERISA Fiduciary Duties (Part 2)

• J&J Case Practical Considerations: The ERISA Trust Rules for Health Plans (Part 1)

• J&J Case Practical Considerations: The ERISA Trust Rules for Health Plans (Part 2)

The court dismissed the main components of the lawsuit on procedural grounds for failure to show the plaintiff had standing to bring the claim. Nonetheless, the case remains open because of—you guessed it—the J&J’s alleged failure to comply with the participant’s document requests under ERISA §104(b)(4). The court found that the “allegations support a claim that a written request from a participant or beneficiary was made, and that Defendants failed to respond within thirty days,” based on the plaintiff’s compliant that J&J “only belatedly provided Plaintiff with the [requested documents] more than 30 days after [Plaintiff] initially requested it and only after this suit was filed.”

Thus, the most-discussed ERISA litigation in recent years is left to turn on the most basic of the ERISA requirements. This should serve as a reminder to employers not to forget such ERISA fundamentals as responding to written document requests even in the face of high-profile and novel ERISA theories and substantive matters that may seem much more significant.

Reminder: Other Documents Provided Automatically
While this post addresses written requests for ERISA documents, employers should keep in mind that certain documents must be provided automatically to participants regardless of whether the employee requests them in writing. This includes the SPD, SAR, SBCs, and certain annual legal notices.

For more details:

• When to Distribute the SPD to Employees

• The Summary Annual Report (SAR) for Health Plans

• Providing Summaries of Benefits and Coverage (SBCs) to Employees

• The Required Annual Notices to Employees

• Newfront ERISA for Employers Guide

• Newfront SBCs for Employers Guide

Summary
Employers should ensure that they carefully review any written request for ERISA plan documentation, determine the appropriate documents subject to mandatory disclosure within the request, and timely respond by providing the applicable documentation to avoid potentially costly litigation and court-imposed penalties.

Relevant Cites:

ERISA §104(b)(4):
(4) The administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instruments under which the plan is established or operated. The administrator may make a reasonable charge to cover the cost of furnishing such complete copies. The Secretary may by regulation prescribe the maximum amount which will constitute a reasonable charge under the preceding sentence.

ERISA §502(c)(1):
(1) Administrator's refusal to supply requested information. Any administrator (A) who fails to meet the requirements of paragraph (1) or (4) of section 606, section 101(e)(1), section 101(f), section 105(a), or section 113(a) with respect to a participant or beneficiary, or (B) who fails or refuses to comply with a request for any information which such administrator is required by this title to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court's discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. For purposes of this paragraph, each violation described in subparagraph (A) with respect to any single participant, and each violation described in subparagraph (B) with respect to any single participant or beneficiary, shall be treated as a separate violation.

29 CFR §2575.502c-1:
In accordance with the requirements of the 1990 Act, as amended, the maximum amount of the civil monetary penalty established by section 502(c)(1) of the Employee Retirement Income Security Act of 1974, as amended (ERISA), is hereby increased from $100 a day to $110 a day. This adjusted penalty applies only to violations occurring after July 29, 1997.

Disclaimer: The intent of this analysis is to provide the recipient with general information regarding the status of, and/or potential concerns related to, the recipient’s current employee benefits issues. This analysis does not necessarily fully address the recipient’s specific issue, and it should not be construed as, nor is it intended to provide, legal advice. Furthermore, this message does not establish an attorney-client relationship. Questions regarding specific issues should be addressed to the person(s) who provide legal advice to the recipient regarding employee benefits issues (e.g., the recipient’s general counsel or an attorney hired by the recipient who specializes in employee benefits law).