We have previously discussed The Importance of the Official Plan Document including the uncertainty of whether one document could perform double duty as “the Plan document” and the summary plan description (“SPD”). While it is still “not a sure bet” as to how the U.S. Supreme Court would rule, a recent ruling has held that the SPD can, in fact, be the governing plan document.
In Board of Trustees v. Moore, the U.S. Court of Appeals for the Sixth Circuit considered, among other things, whether the SPD was a controlling plan document with regard to a subrogation provision. The Sixth Circuit affirmed the district court’s ruling that the Plaintiff’s SPD was the controlling welfare benefits plan because Plaintiff, the Board of Trustees of the National Elevator Board (“NEI Board”), had failed to draft an actual welfare plan as authorized by its Trust Agreement.
The NEI Board established a Health Benefits Plan under ERISA, pursuant to two relevant documents, a Trust Agreement and an SPD. The Trust Agreement provided for the establishment and funding of “The National Elevator Industry Health Benefit Plan” and set out the method of selection, powers, and obligations of the NEI Board, which would act as both administrator and fiduciary of the trust. However, the Trust Agreement did not contain “the customary nuts and bolts of an ERISA health plan.” The Trust Agreement provided the authority for the NEI Board to adopt “a Plan of Welfare Benefits,” but the NEI Board never created a plan document. The NEI Board did create an SPD. The SPD provided what was not included in the Trust Agreement, such as the scope of eligibility, the division of medical expenses, and a subrogation provision, which was at issue.
The main question for the Sixth Circuit was whether the SPD was a binding and enforceable plan document. Under ERISA, “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument.” Additionally, ERISA requires that covered welfare benefit plans furnish participants and beneficiaries with a written “summary plan description” that explains the terms of the plan “in a manner calculated to be understood by the average plan participant.” In Moore, the Plan’s director of health claims administration testified that the SPD constituted both the Welfare Benefits Plan provided for in the Trust Agreement and the SPD – in other words, one document performing double duty.
Moore argued that, under CIGNA Corp. v. Amara, the SPD could not be the plan because the summary documents provide information about the plan but do not constitute the terms of the plan. However, the Sixth Circuit distinguished the documents in Amara in that one document functioned as the plan and one document as the summary plan description and the two contained conflicting terms. The court went on to say that “[n]othing in Amara prevents a document from functioning both as the ERISA plan and as an SPD, if the terms of the plan so provide.” The court also considered in its decision the prior conclusions of 2014 decisions out of the Third and Eleventh Circuits holding that the same SPD functions as the controlling plan document in the absence of a separate plan document.
The Sixth Circuit ultimately affirmed the district court’s holding, in which it quoted from Feifer v. Prudential Insurance Co. of America, that “the summary plan description in the record is the controlling document because there is no other plan document that establishes Moore’s right to receive medical benefits and the Plan’s subrogation rights. The document establishing the Plan’s trust is not the applicable ‘plan document’ because it does not describe the ‘intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits.’” The court stated that although the facts of Feifer are not directly on point with the facts of the Moore case, it is instructive in its holding that an SPD describing employee benefits that anticipates the existence of the Plan, but is issued in advance of the Plan, constitutes the actual plan and summary of a plan “that is nowhere else in writing” and that nothing in the Supreme Court’s opinion in Amara changes that analysis.
Even though some courts have held, under a particular set of facts and circumstances, that an SPD can perform double-duty as the Plan and the summary of the Plan, it is still uncertain as to whether this approach would pass muster with the U.S. Supreme Court. While these cases suggest that “all is not lost” under the double duty approach, an abundance of caution would suggest that the Plan and the SPD should be two separate and distinct documents.