76250 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Notices 

1This provision was added to ERISA by section 

302(b) of the Multiple Employer Welfare 

Arrangement Act of 1983, Public Law 97–473, 96 

Stat. 2611, 2612 which also amended section 514(b) 

of ERISA, 29 U.S.C. 1144(a). Section 514(a) of 

ERISA provides that state laws that relate to 

employee benefit plans are generally preempted by 

ERISA. Section 514(b) sets forth several exceptions 

to the general rule of section 514(a) and subjects 

employee benefit plans that are MEWAs to various 

levels of state regulation depending on whether the 

MEWA is fully insured. Sec. 302(b), Public Law 97– 

473, 96 Stat. 2611, 2613 (29 U.S.C. 1144(b)(6)). 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

RIN 1210–AB51 

Proposed Revision of the Form M–1 

AGENCY: Employee Benefits Security 

Administration, Department of Labor. 

ACTION: Notice of proposed form 

revisions. 

SUMMARY: This document announces 

proposed revisions to the Form M–1, 

Report for Multiple Employer Welfare 

Arrangements (MEWAs) and Certain 

Entities Claiming Exception (ECEs). The 

revisions can be viewed on the 

Employee Benefits Security 

Administration’s (EBSA) Web site at 

www.dol.gov/ebsa. The proposed form 

is substantively different from previous 

versions of the Form M–1 and may not 

be used for filing purposes. Elsewhere 

in this edition of the Federal Register, 

EBSA is publishing a Notice of 

Proposed Rulemaking. Those rules 

would amend the existing MEWA 

regulations to implement the 

registration requirement added to 

section 101(g) of Title I of the Employee 

Retirement Income Security Act of 1974, 

(ERISA), as amended by the Patient 

Protection and Affordable Care Act 

(Affordable Care Act) as well as to 

enhance compliance, enforcement, and 

protection of employer-sponsored 

health benefits. The proposed form and 

the accompanying instructions would 

facilitate the filing requirements for 

MEWAs under ERISA. 

DATES: Written comments on the Form 

M–1 and Instructions should be 

submitted to the Department of Labor on 

or before March 5, 2012. 

ADDRESSES: Written comments may be 

submitted to the address specified 

below. All comments will be made 

available to the public. WARNING: Do 

not include any personally identifiable 

information (such as name, address, or 

other contact information) or 

confidential business information that 

you do not want publicly disclosed. All 

comments may be posted on the Internet 

and can be retrieved by most Internet 

search engines. Comments may be 

submitted anonymously. 

Department of Labor. Comments to 

the Department of Labor, identified by 

RIN 1210–AB51, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: E-OHPSCAM1Revisions.EBSA@dol.gov. 

• Mail or Hand Delivery: Office of 

Health Plan Standards and Compliance 

Assistance, Employee Benefits Security 

Administration, Room N–5653, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210, 

Attention: RIN 1210–AB51; Revision of 

Form M–1. 

Comments received by the 

Department of Labor will be posted 

without change to http:// 

www.regulations.gov and http:// 

www.dol.gov/ebsa, and made available 

for public inspection at the Public 

Disclosure Room, N–1513, Employee 

Benefits Security Administration, 200 

Constitution Avenue NW., Washington, 

DC 20210. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Horahan or Suzanne Bach, Office 

of Health Plan Standards and 

Compliance Assistance, at (202) 693– 

8335. This is not a toll-free number. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Health Insurance Portability and 

Accountability Act of 1996 (Pub. L. 

104–191, 110 Stat. 1936) (HIPAA) 

amended ERISA to provide for, among 

other things, improved portability and 

continuity of health insurance coverage. 

HIPAA also added section 101(g) to 

ERISA, 29 U.S.C. 1021(g), providing the 

Secretary with the authority to require, 

by regulation, annual reporting by 

MEWAs that are not ERISA-covered 

plans. The Patient Protection and 

Affordable Care Act (Affordable Care 

Act), Public Law 111–148, 124 Stat. 119 

(2010), amended section 101(g) of 

ERISA to require that such MEWAs 

register with the Department prior to 

operating in a State. Specifically, this 

section now provides that the Secretary 

shall, by regulation, require multiple 

employer welfare arrangements 

providing benefits consisting of medical 

care (within the meaning of section 

733(a)(2) of ERISA, 29 U.S.C. 

1191b(a)(2)) which are not ERISAcovered group health plans to register 

with the Secretary prior to operating in 

a State and may, by regulation, require 

such multiple employer welfare 

arrangements to report, not more 

frequently than annually, in such form 

and such manner as the Secretary may 

require for the purpose of determining 

the extent to which the requirements of 

part 7 of subtitle B of title I of ERISA 

are being carried out in connection with 

such benefits. 

The term ‘‘multiple employer welfare 

arrangement’’ is defined in section 3(40) 

of ERISA, 29 U.S.C. 1002(40) in 

pertinent part, as an employee welfare 

benefit plan, or any other arrangement 

(other than an employee welfare benefit 

plan), which is established or 

maintained for the purpose of offering 

or providing medical benefits to the 

employees of two or more employers 

(including one or more self-employed 

individuals), or to their beneficiaries, 

except that such term does not include 

any such plan or other arrangement 

which is established or maintained 

under or pursuant to one or more 

agreements which the Secretary finds to 

be collective bargaining agreements, by 

a rural electric cooperative, or by a rural 

telephone cooperative association. For 

purposes of this definition, two or more 

trades or businesses, whether or not 

incorporated, shall be deemed a single 

employer if such trades or businesses 

are within the same control group. The 

term ‘‘control group’’ means a group of 

trades or businesses under common 

control, and the determination of 

whether a trade or business is under 

‘‘common control’’ with another trade or 

business shall be determined under 

regulations of the Secretary applying 

principles similar to the principles 

applied in determining whether 

employees of two or more trades or 

businesses are treated as employed by a 

single employer under section 4001(b) 

of ERISA, 29 U.S.C. 1301(b), except that, 

for purposes of this paragraph, common 

control shall not be based on an interest 

of less than 25 percent.1

In 2000, the Department published an 

interim final rule implementing the 

MEWA reporting requirement. 65 FR 

715 (Feb. 11, 2000). The interim final 

rule generally required the 

administrator of a MEWA, whether or 

not an ERISA-covered group health plan 

(and certain other entities that offer or 

provide health benefits to the employees 

of two or more employers) to file the 

Form M–1 with the Secretary. The 

purpose of this form is to allow the 

Department to determine whether the 

requirements of part 7 are being met. A 

final rule implementing the MEWA 

reporting requirement was published in 

the Federal Register on April 9, 2003 at 

68 FR 17494. The original reporting 

requirement responded to a 1992 

recommendation of the General 

Accounting Office (GAO). See 


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Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Notices 76251 

2The term ‘‘group health plan’’ is used in title 

XXVII of the PHS Act, part 7 of ERISA, and chapter 

100 of the Code, and is distinct from the term 

‘‘health plan’’, as used in other provisions of title 

I of the Affordable Care Act. The term ‘‘health plan’’ 

does not include self-insured group health plans. 

‘‘Employee Benefits: States Need Labor’s 

Help Regulating Multiple Employer 

Welfare Arrangements,’’ March 1992, 

GAO/HRD–92–40. In that report, the 

GAO detailed a history of fraud and 

abuse by some MEWAs and 

recommended that the Department 

develop a mechanism to help States 

identify MEWAs. The problems pointed 

out in that report continued to exist at 

the time of the publication of the 

interim final and final reporting rules 

and by all accounts, as evidenced by the 

amendments made by the Affordable 

Care Act to section 101(g) of ERISA, 

persist to this day. The proposed rules 

published elsewhere in today’s edition 

of the Federal Register would amend 

the final rule as well as the rules related 

to annual reports required of MEWAs 

that are group health plans and solicit 

comments regarding the restructured 

reporting requirements. 

The Affordable Care Act was enacted 

on March 23, 2010; the Health Care and 

Education Reconciliation Act (the 

Reconciliation Act), Public Law 111– 

152, 124 Stat. 1029, was enacted on 

March 30, 2010. The Affordable Care 

Act and the Reconciliation Act 

reorganize, amend, and add to the 

provisions in part A of title XXVII of the 

Public Health Service Act (PHS Act), 42 

U.S.C. 300gg–1 et seq., relating to group 

health plans and health insurance 

issuers in the group and individual 

markets. The term ‘‘group health plan’’ 

includes both insured and self-insured 

group health plans.2 The Affordable 

Care Act adds section 715(a)(1) to 

ERISA, 29 U.S.C. 1185d(a)(1), and 

section 9815(a)(1) to the Internal 

Revenue Code (the Code), 26 U.S.C. 

9815(a)(1), to incorporate the provisions 

of part A of title XXVII of the PHS Act 

into ERISA and the Code, and make 

them applicable to group health plans, 

and health insurance issuers providing 

health insurance coverage in connection 

with group health plans. The PHS Act 

sections incorporated by this reference 

are sections 2701 through 2728. PHS 

Act sections 2701 through 2719A are 

substantially new, though they 

incorporate some provisions of prior 

law. PHS Act sections 2722 through 

2728 are sections of prior law 

renumbered, with some, mostly minor, 

changes. Section 1251 of the Affordable 

Care Act, as modified by section 10103 

of the Affordable Care Act and section 

2301 of the Reconciliation Act, 42 

U.S.C. 18011, specifies that certain 

plans or coverage existing as of the date 

of enactment (i.e., grandfathered health 

plans) are only subject to certain 

provisions. The Affordable Care Act 

amended section 101(g) of ERISA to 

require MEWAs that provide benefits 

consisting of medical care (within the 

meaning of section 733(a)(2) of ERISA) 

which are not group health plans to 

register with the Secretary prior to their 

operating in a State, in addition to 

reporting annually regarding their 

compliance with part 7 of ERISA 

including the PHS Act market reforms 

incorporated by reference in section 715 

of ERISA. The Notice of Proposed 

Rulemaking published elsewhere in 

today’s Federal Register implements the 

101(g) MEWA registration mandate 

which requires MEWAs to report 

compliance with the part 7 rules 

including the PHS Act sections 2701 

through 2728. 

In addition to the relevant provisions 

of HIPAA and the Affordable Care Act, 

other laws are also set forth in part 7 

with which MEWAs must annually 

report compliance. The Mental Health 

Parity Act of 1996 (Title VII of Pub. L. 

104– 204, 110 Stat. 2944)) (MHPA) 

amended ERISA to provide parity in the 

application of annual and lifetime dollar 

limits for certain mental health benefits 

with such dollar limits on medical and 

surgical benefits. The Paul Wellstone 

and Pete Domenici Mental Health Parity 

and Addiction Equity Act of 2008 (Div. 

C, Subtitle B of Pub. L. 110–343, 122 

Stat. 3765) amended ERISA by 

expanding the MHPA rules to include 

parity for substance use disorders 

benefits. 29 U.S.C. 1185a. It also 

required parity in financial 

requirements and treatment limitations. 

The Newborns’ and Mothers’ Health 

Protection Act of 1996 (Title VI of Pub. 

L. 104–204, 110 Stat. 2935) amended 

ERISA to provide new protections for 

mothers and their newborn children 

with regard to the length of hospital 

stays in connection with childbirth. 29 

U.S.C. 1185. The Women’s Health and 

Cancer Rights Act of 1998 (Title VII of 

Pub. L. 105–277, 112 Stat. 2681–436) 

amended ERISA to provide individuals 

new rights for reconstructive surgery in 

connection with a mastectomy. 29 

U.S.C. 1185b. The Genetic Information 

Nondiscrimination Act of 2008 (Pub. L. 

110–233, 122 Stat. 881) amended ERISA 

to prohibit the use of genetic 

information to adjust group premiums 

or contributions, prohibit the collection 

of genetic information, and prohibit 

requesting individuals to undergo 

genetic testing. 29 U.S.C. 1182. 

Michelle’s Law (Pub. L. 110–381, 122 

Stat. 4081 (2008)) amended ERISA to 

prohibit group health plans and issuers 

from terminating coverage for a 

dependent child, whose enrollment in 

the plan requires student status at a 

postsecondary educational institution, if 

the student status is lost as a result of 

a medically necessary leave of absence. 

29 U.S.C. 1185c. 

II. Discussion of the Proposed Revisions 

A. Proposed Regulatory Amendments 

The Department is simultaneously 

publishing a Notice of Proposed 

Rulemaking in today’s Federal Register 

that, upon adoption, would amend the 

existing Form M–1 requirements under 

§ 2520.101–2, propose implementation 

of new registration requirements 

enacted by the Affordable Care Act, and 

propose amendments to the 

Department’s annual reporting 

regulations to strengthen the Form M– 

1 requirements for all MEWAs. The new 

registration requirement is an important 

new enforcement tool to help Federal 

and State regulators better identify and 

monitor MEWAs and gives the Secretary 

authority to collect additional 

information than had been collected in 

previous versions of the Form M–1, 

including custodial and financial 

information. To reflect the proposed 

regulatory amendments to the Form M– 

1 reporting requirements, the 

Department is proposing the following 

revisions. 

B. Overview of Form Revisions 

This document announces the 

availability of the proposed revisions to 

the Form M–1, Form for Multiple 

Employer Welfare Arrangements 

(MEWAs) and Certain Entities Claiming 

Exception (ECEs), for comment. The 

proposed revisions to the Form M–1 

may be viewed on EBSA’s Web site at 

http://www.dol.gov/ebsa. The proposed 

revisions result in a Form M–1 that is 

substantially different from previous 

versions of the Form M–1. 

Part I of the proposed Form M–1 was 

revised to implement the new statutory 

and proposed regulatory requirements 

that MEWAs must register with the 

Department prior to operating in a State. 

Filers would be required to indicate the 

type of filing entity (i.e. plan MEWA, 

non-plan MEWA, or an ECE) and the 

type of filing being submitted (i.e. 

annual report, registration, origination, 

or request for extension). 

Part II of the proposed Form M–1 

would require more extensive custodial 

and financial information than 

requested in previous versions of the 

Form M–1. In addition to providing 

information regarding the entity’s 

administrator and entity sponsor, the 


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76252 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Notices 

Form M–1 would require an entity to 

report individuals associated with the 

entity as follows: agent for service of 

process or registered agent; members of 

the Board, officers, trustees, custodians; 

promoters and/or agents responsible for 

marketing; any person, financial 

institution or other entity holding 

assets; any actuaries providing services; 

any third party administrator (TPA) 

with whom the MEWA or ECE has a 

contract with; any person or entity that 

has authority or control over the assets 

of the MEWA or ECE or over assets paid 

to the entity by plans or employers for 

the provision of benefits; any person or 

entity that has discretionary authority 

control, or responsibility with respect to 

the administration of the MEWA or ECE 

or any benefit program offered by it; and 

information regarding any merger with 

another filing entity. Additionally, the 

proposed Form M–1 would require the 

filing entity to respond to several ‘‘yes 

or no’’ questions with respect to the 

entity’s assets and the fiduciaries 

responsible for those assets. 

Part II of the proposed Form M–1 

includes information previously 

contained in Part III of the Form M–1 

and includes several modifications 

which capture information regarding 

entities that are operating in a State. 

Pursuant to the definition of 

‘‘operating’’ in the proposed regulations 

published elsewhere in today’s edition 

of the Federal Register, these 

modifications may apply to entities that 

are not actively providing coverage. 

The information collected in Part III 

of the proposed Form M–1 (previously 

designated as Part IV) remains generally 

unchanged, except information 

regarding legal proceedings is now 

included in Part II. 

Corresponding changes were also 

made to the Form M–1 Instructions 

including the line-by-line instructions 

to reflect these revisions to the Form M– 

1. More details on filing requirements 

are available in the Notice of Proposed 

Rulemaking published elsewhere in this 

edition of the Federal Register. The Self 

Compliance Tool, which may be used to 

help assess an entity’s compliance with 

part 7 of ERISA, will continue to be 

included in the Form M–1 instructions. 

The current version of that document is 

available at http://www.dol.gov/ebsa. 

The Self Compliance Tool undergoes 

changes to reflect the current provisions 

of part 7 as they become effective. While 

we are accepting comments on the Form 

M–1 and the Instructions, which 

include the Self-Compliance tool, please 

refrain from commenting on the portion 

of the instructions referencing the Self 

Compliance Tool in that regard. 

III. Paperwork Reduction Act 

Statement 

According to the Paperwork 

Reduction Act of 1995 (Pub. L. 104–13) 

(PRA), no persons are required to 

respond to a collection of information 

unless such collection displays a valid 

OMB control number. The Department 

notes that a Federal agency cannot 

conduct or sponsor a collection of 

information unless it is approved by the 

Office of Management and Budget 

(OMB) under the PRA, and displays a 

currently valid OMB control number, 

and the public is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. See 44 U.S.C. 3507. 

Also, notwithstanding any other 

provisions of law, no person shall be 

subject to penalty for failing to comply 

with a collection of information if the 

collection of information does not 

display a currently valid OMB control 

number. See 44 U.S.C. 3512. 

This notice would revise the 

information collection request (ICR) 

titled the ‘‘Annual Report for Multiple 

Employer Welfare Arrangements (Form 

M–1) approved by OMB under OMB 

Control Number 1210–0116, which 

currently is scheduled to expire on 

March 31, 2013. For the hour and cost 

burden associated with this revision, 

please see the proposed regulation titled 

‘‘Filings Required of Multiple Employer 

Welfare Arrangements and Certain 

Other Entities that Offer or Provide 

Coverage for Medical Care to the 

Employees of Two or More Employers,’’ 

which is published elsewhere in today’s 

issue of the Federal Register. 

Statutory Authority: 29 U.S.C. 1021–1024, 

1027, 1029–31, 1059, 1134 and 1135; 

Secretary of Labor’s Order 3–2010, 75 FR 

55354 (September 10, 2010). Sec. 2520.101– 

2 also issued under 29 U.S.C. 1181–1183, 

1181 note, 1185, 1185a–d, and 1191–1191c. 

Sec. 2520.103–1 also issued under 26 U.S.C. 

6058 note. Sec. 2520.101–6 also issued under 

§ 502(a)(3), 120 Stat. 780, 940 (2006); Secs. 

2520.102–3, 2520.104b–1 and 2520.104b–3 

also issued under 29 U.S.C. 1003, 1181–1183, 

1181 note, 1185, 1185a–d, 1191, and 1191a– 

c. Secs. 2520.104b–1 and 2520.107 also 

issued under 26 U.S.C. 401 note, 111 Stat. 

788. Sec. 2520.101–3 is also issued under 29 

U.S.C. 1021(i). 

Signed at Washington, DC this 28th day of 

November, 2011. 

Phyllis C. Borzi, 

Assistant Secretary, Employee Benefits 

Security Administration. 

[FR Doc. 2011–30920 Filed 12–5–11; 8:45 am] 

BILLING CODE 4510–29–P 

DEPARTMENT OF LABOR 

Employee Benefits Security 

Administration 

RIN 1210–AB51 

Proposed Revision of Annual 

Information Return/Reports 

AGENCY: Employee Benefits Security 

Administration, Department of Labor 

ACTION: Notice of proposed forms 

revisions. 

SUMMARY: This document contains 

proposed revisions to the Form 5500 

Annual Return/Report filed by 

administrators of employee benefit 

plans. The proposed revisions are 

intended to enhance the Department of 

Labor’s ability to enforce the reporting 

requirements for multiple employer 

welfare arrangements (MEWAs) under 

Title I of the Employee Retirement 

Income Security Act of 1974, as 

amended (ERISA). 

DATES: Written comments on the 

proposed regulations should be 

submitted to the Department of Labor on 

or before March 5, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Janet K. Song, Office of Regulations and 

Interpretations, Employee Benefits 

Security Administration, Department of 

Labor, at (202) 693–8523. This is not a 

toll-free number. 

ADDRESSES: Written comments may be 

submitted to the address specified 

below. All comments will be made 

available to the public. Warning: Do not 

include any personally identifiable 

information (such as name, address, or 

other contact information) or 

confidential business information that 

you do not want publicly disclosed. All 

comments may be posted on the Internet 

and can be retrieved by most Internet 

search engines. Comments may be 

submitted anonymously. 

Comments may be submitted to the 

Department of Labor, identified by RIN 

1210–AB51, by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: e-ORI@dol.gov. 

• Mail or Hand Delivery: Office of 

Regulations and Interpretations, 

Employee Benefits Security 

Administration, Room N–5655, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Washington, DC 20210, 

Attention: RIN 1210–AB51. 

Comments received by the 

Department of Labor will be posted 

without change to http:// 

www.regulations.gov and http:// 


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