:: No Statutory Penalty For Failure To Supply Requested Benefit Claims Forms

he administrator shall, upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, 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.

29 U.S.C. § 1024(b)(4)

Ejusdem generis – “when general words follow the enumeration of specific words in a statute, courts are to construe the general words in a manner that limits them to the same class of things enumerated by the preceding specific words.”

In other words, if a statute begins listing a series of items followed by a phrase such as “and so forth”, or more to the point, “other instruments”, the courts will try to limit additions to the listed items to the same class of the items that preceded.

It is important to get the meaning of this particular statute right – at $110 per day, the Latin lesson could get expensive.

That’s the potential penalty, of course, for failure to provided requested information under 29 U.S.C. § 1024(b)(4). (See, ERISA Plan Information Requests: (Unit 1) “Statutory Purpose and Scope)

A recent district court decision holds that claims forms do not rank inclusion in the plan information subject to the statute. Relying on the seminal Sixth Circuit opinion, Allinder v. Inter-City Products Corp., 152 F.3d 544 (6th Cir. 1998), the district court in Wright v. C&M Tire, Inc., — F.Supp.2d —-, 2008 WL 1701688 (D. Kan. 2008), stated:

Mr. Wright also asserts in the pretrial order a claim under section 1132(c) of ERISA for statutory penalties based solely on defendant’s delay in providing to Mr. Wright a short-term disability claim form. Summary judgment on this claim is appropriate, however, because claim forms are not among the information that section 1132(c) requires a plan administrator to furnish to plan participants.

This decision is consistent with the view of other courts facing the issue.

Note: One could reasonably conceive of claims forms as instruments under which a plan is operated. From a perspective of regulatory process, the claims form will likely constitute an important, if not required, means of initiating a claim for plan benefits.

Allinder rejects this notion, however, and thereby substantially limits the category of “other instruments” subject to the disclosure requirement.

From the statute’s enumeration of the specific terms “summary plan description,” “plan description,” “bargaining agreement,” and “contract,” it is apparent that “other instruments” was meant to refer to documents that provide or contain information concerning the terms and conditions of the participant’s policy. In a similar vein, the general term “other instruments” is qualified by the phrase “under which the plan is established or operated.” 29 U.S.C. § 1024(b)(4).

Section 1024(b)(4)’s reference to “other instruments” is thus properly limited to those class of documents which provide a plan participant with information concerning how the plan is operated. Claim forms contain none of these qualities. Instead, claim forms are simply documents used in the ministerial day-to-day processing of individual claims pursuant to other documents that determine the plan’s operation.