An employee is asking for copies of several documents relating to the medical plan. Do I have to give them to him?

Under ERISA, the plan administrator is obligated to provide certain documents to any participant or beneficiary under the plan when requested in writing. The documents that must be provided include the latest updated SPD (including interim summaries of material modifications), the latest annual report (i.e., Form 5500), any terminal report (i.e., final Form 5500 for a terminated plan), any bargaining agreement, any trust agreement, and “any contract or other instruments under which the plan is established or operated.” Participants and beneficiaries may request to examine documents or to be given copies of documents. If examination is requested, the plan administrator must make the documents available at the principal office of the administrator and “in such other places as may be necessary to make available all pertinent information to all participants.” So, the answer to the question depends on whether the request is coming from a participant or beneficiary and whether the requested documents are included in the list of documents that must be furnished.

Only participants and beneficiaries are entitled to receive documents upon request. The term “participant” means an employee or former employee of any employer who is or may become eligible for benefits under an ERISA plan “maintained for the employees of such employer” or whose beneficiaries may be eligible for benefits. This would include employees who are eligible but not enrolled in the plan, COBRA qualified beneficiaries, and covered retirees. A beneficiary is a person designated by a participant, or by the terms of an ERISA plan, who is or may become entitled to a benefit under the plan. This would include eligible spouses and children and healthcare providers who have received an assignment of benefits that includes requesting documents. So, if the employee whose attorney has requested the documents falls into one of these definitions, then the plan administrator must produce the documents described in the second paragraph, above, or risk being exposed to the daily penalty.

But the plan administrator does not have to produce all documents that the participant or beneficiary asks for, depending on whether they are “any contract or other instruments under which the plan is established or operated.” There are differing court opinions on whether various other documents must be disclosed, including claims-related documents, guidelines used to review benefits claims, TPA contracts, and minutes of meetings.

Participants and beneficiaries may request to examine documents or to be given copies of documents. If examination is requested, the plan administrator must make the documents available at the principal office of the administrator and “in such other places as may be necessary to make available all pertinent information to all participants.” If copies of documents are requested, the plan administrator may charge reasonable copying costs, not to exceed 25 cents per page, or the actual cost, whichever is less. Failure to produce requested documents within thirty days of the request may result in a $110 per day penalty.

It is advisable to consult with legal counsel if and when you receive a request for production of documents.