8018-08ORDINANCE NO. 8018 - 08
AN ORDINANCE OF THE CITY OF CLEARWATER, FLORIDA,
RELATING TO THE CITY OF CLEARWATER PREMIUM PAYMENT
PLAN (THE "PREMIUM PLAN") AND THE CITY OF CLEARWATER
CAFETERIA PLAN (THE "CAFETERIA PLAN"); AMENDING AND
RESTATING THE PREMIUM PLAN AND THE CAFETERIA PLAN TO
COMPLY WITH ALL LEGISLATIVE CHANGES REQUIRED BY LAW;
REPEALING ALL ORDINANCES IN CONFLICT HEREWITH AND
PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Clearwater ("City") established the Premium Plan effective January 1,
1991 and the Cafeteria Plan effective January 1, 2003; and
WHEREAS, the City desires to amend the Premium Plan and the Cafeteria Plan to comply
with all required legislative changes; and
and
WHEREAS, the City is granted authority to amend the Premium Plan and the Cafeteria Plan;
WHEREAS, the City has determined that it is the best interest of participants to amend the
Premium Plan and the Cafeteria Plan.
NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLEARWATER,
FLORIDA:
Section 1. The City Code of Ordinances is hereby amended in accordance with the
amendment and restatement of the Premium Plan and the Cafeteria Plan, copies of which are
attached hereto as Exhibit A and B, respectively, and made a part hereof, is hereby approved and
adopted.
Section 2. The Premium Plan and the Cafeteria Plan shall be effective January 1, 2008.
Section 3. All Ordinances or parts of Ordinances in conflict herewith be and the same are
hereby repealed.
PASSED ON FIRST READING
October 16, 2008
PASSED ON SECOND AND FINAL
READING AND ADOPTED November 6, 2008
Approved as to form:
141' a 7
By ' Age' A. If A#
Leslie K. Dougall- d s,
Assistant City Attohw?
CITY OF C EARWATER, FLORIDA
By:
F nk Hibbard, Mayor
Exhibit A
CITY OF CLEARWATER
PREMIUM PAYMENT PLAN
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY .............................................................................. .................................. 3
2.2 EFFECTIVE DATE OF PARTICIPATION ................................. ..................................4
2.3 TERMINATION OF PARTICIPATION ...................................... .................................. 4
2.4 CHANGE OF EMPLOYMENT STATUS .................................... ..................................4
2.5 TERMINATION OF EMPLOYMENT ........................................ ..................................4
ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 EMPLOYER CONTRIBUTION ................................................ .................................... 5
3.2 SALARY REDIRECTION ......................................................... .................................... 5
3.3 APPLICATION OF CONTRIBUTIONS .................................... ....................................5
3.4 PERIODIC CONTRIBUTIONS ................................................. .................................... 6
ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS .............................................. ........................................................6
4.2 HEALTH INSURANCE BENEFIT ........................ ........................................................6
4.3 DENTAL INSURANCE BENEFIT ........................ ........................................................7
4.4 CANCER INSURANCE BENEFIT ....................... ........ Error! Bookmark not defined.
4.5 VISION INSURANCE BENEFIT .......................... ........................................................7
4.6 NONDISCRIMINATION REQUIREMENTS ........ ........................................................7
ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS ...................................................................................................8
5.2 SUBSEQUENT ANNUAL ELECTIONS .......................................................................8
5.3 CHANGE IN STATUS ..................................................................................................9
ARTICLE VI
BENEFITS AND RIGHTS
6.1 CLAIM FOR BENEFITS .............................................................................................12
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ARTICLE VII
ADMINISTRATION
7.1 PLAN ADMINISTRATION ........................................................... .............................12
7.2 EXAMINATION OF RECORDS .................................................... .............................13
7.3 PAYMENT OF EXPENSES ........................................................... .............................13
7.4 INSURANCE CONTROL CLAUSE ............................................... .............................13
7.5 INDEMNIFICATION OF ADMINISTRATOR .............................. .............................13
ARTICLE VIII
AMENDMENT OR TERMINATION OF PLAN
8.1 AMENDMENT ............................................................................................................13
8.2 TERMINATION ..........................................................................................................14
ARTICLE IX
MISCELLANEOUS
9.1 PLAN INTERPRETATION .................................................................................... .....14
9.2 GENDER AND NUMBER ..................................................................................... .....14
9.3 WRITTEN DOCUMENT ........................................................................................ .....14
9.4 EXCLUSIVE BENEFIT .......................................................................................... .....14
9.5 PARTICIPANT'S RIGHTS ..................................................................................... .....14
9.6 ACTION BY THE EMPLOYER ............................................................................. .....15
9.7 EMPLOYER'S PROTECTIVE CLAUSES .............................................................. .....15
9.8 NO GUARANTEE OF TAX CONSEQUENCES .................................................... .....15
9.9 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS ............................... .....15
9.10 FUNDING .............................................................................................................. .....16
9.11 GOVERNING LAW ............................................................................................... .....16
9.12 SEVERABILITY .................................................................................................... .....16
9.13 CAPTIONS ............................................................................................................. .....16
9.14 FAMILY AND MEDICAL LEAVE ACT ............................................................... .....16
9.15 UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS
ACT ........................................................................................................................ .....17
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CITY OF CLEARWATER PREMIUM PAYMENT PLAN
INTRODUCTION
The Employer has amended this Plan effective January 1, 2007, to recognize the
contribution made to the Employer by its Employees. Its purpose is to reward them by providing
benefits for those Employees who shall qualify hereunder and their dependents and beneficiaries.
The concept of this Plan is to allow Employees to choose among different types of benefits based
on their own particular goals, desires and needs. This Plan is a restatement of a Plan which was
originally effective on January 1, 1991. The Plan shall be known as City of Clearwater Premium
Payment Plan (the "Plan").
The intention of the Employer is that the Plan qualify as a "Cafeteria Plan" within
the meaning of Section 125 of the Internal Revenue Code of 1986, as amended, and that the
benefits which an Employee elects to receive under the Plan be excludable from the Employee's
income under Section 125(a) and other applicable sections of the Internal Revenue Code of
1986, as amended.
ARTICLE I
DEFINITIONS
1.1 "Administrator" means the individual(s) or corporation appointed by the
Employer to carry out the administration of the Plan. The Employer shall be empowered to
appoint and remove the Administrator from time to time as it deems necessary for the proper
administration of the Plan. In the event the Administrator has not been appointed, or resigns from
a prior appointment, the Employer shall be deemed to be the Administrator.
1.2 "Affiliated Employer" means the Employer and any corporation which is a
member of a controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which is under
common control (as defined in Code Section 414(c)) with the Employer; any organization
(whether or not incorporated) which is a member of an affiliated service group (as defined in
Code Section 414(m)) which includes the Employer; and any other entity required to be
aggregated with the Employer pursuant to Treasury regulations under Code Section 414(0).
1.3 "Benefit" means any of the optional benefit choices available to a Participant as
outlined in Section 4.1.
1.4 "Code" means the Internal Revenue Code of 1986, as amended or replaced from
time to time.
1.5 "Compensation" means the dollar amounts received by the Participant from the
Employer during a Plan Year.
1.6 "Dependent" means any individual who qualifies as a dependent under an
Insurance Contract under Code Section 152 (as modified by Code Section 105(b)).
1.7 "Effective Date" means January 1, 2007.
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1.8 "Election Period" means the period immediately preceding the beginning of each
Plan Year established by the Administrator, such period to be applied on a uniform and
nondiscriminatory basis for all Employees and Participants. However, an Employee's initial
Election Period shall be determined pursuant to Section 5.1.
1.9 "Eligible Employee" means any Employee who has satisfied the provisions of
Section 2.1. In addition, an individual who meets the requirements of Florida Statutes Chapter
112.0801 shall be eligible to participate in the Plan. However, the following individuals shall not
be eligible to participate in the Plan:
(a) individuals who are not reported on the payroll records of the Employer as
a common law employee. In particular, it is expressly intended that individuals
not treated as common law employees by the Employer on its payroll records are
not "Eligible Employees" and are excluded from Plan participation even if a court
or administrative agency determines that such individuals are common law
employees and not independent contractors.
(b) Employees who are classified on the books and records of the Employer as
part-time, temporary, seasonal or emergency employees.
(c) Employee or former Employee who is not eligible to receive medical
benefits pursuant to a group medical plan sponsored by the Employer.
(d) individuals whose employment is governed by the terms of a collective
bargaining agreement between Employee representatives and the Employer under
which benefits were subject of good faith bargaining agreed that such individuals
were excluded from the Plan.
(e) individuals who are "leased employees" as defined in Code Section
414(n)(2).
1.10 "Employee" means any person who is employed by the Employer.
1.11 "Employer" means City of Clearwater and any successor which shall maintain
this Plan; and any predecessor which has maintained this Plan.
1.12 "Employer Contribution" means the contributions made by the Employer pursuant
to Section 3.1 to enable a Participant to purchase Benefits.
1.13 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, or any successor statute. It is understood that ERISA does not apply to this Plan.
References to ERISA should be interpreted as descriptive or explanatory and should not be
interpreted as applying ERISA to this Plan.
1.14 "Highly Compensated Employee" means an Employee described in Code Section
414(q) and the regulations thereunder.
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1.15 "Insurance Contract" means any contract issued by an Insurer underwriting a
Benefit.
1.16 "Insurer" means any insurance company that underwrites a Benefit under this
Plan.
1.17 "Key Employee" means an Employee described in Code Section 416(i)(1) and the
regulations thereunder.
1.18 "Participant" means any Eligible Employee who becomes a Participant pursuant
to Section 2.2 and has not for any reason become ineligible to participate further in the Plan.
1.19 "Plan" means this instrument, including all amendments thereto.
1.20 "Plan Year" means the 12-month period beginning January 1 and ending
December 31. The Plan Year shall be the coverage period for the Benefits provided for under
this Plan. In the event a Participant commences participation during a Plan Year, then the initial
coverage period shall be that portion of the Plan Year commencing on such Participant's date of
entry and ending on the last day of such Plan Year.
1.21 "Premium Expenses" or "Premiums" mean the Participant's cost for the Benefits
described in Section 4.1.
1.22 "Salary Redirection" means the contributions made by the Employer on behalf of
Participants pursuant to Section 3.2.
1.23 "Salary Redirection Agreement" means an agreement which is deemed to be
entered into between the Participant and the Employer under which the Participant agrees to
reduce his Compensation or to forego all or part of the increases in such Compensation and to
have such amounts contributed by the Employer to the Plan on the Participant's behalf. The
Salary Redirection Agreement shall apply only to Compensation that has not been actually or
constructively received by the Participant as of the date of the agreement (after taking this Plan
and Code Section 125 into account) and, subsequently does not become currently available to the
Participant.
1.24 "Spouse" means the legally married husband or wife of a Participant, unless
legally separated by court decree.
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY
Any Eligible Employee shall be eligible to participate hereunder as of the date he
satisfies the eligibility conditions as outlined in Section 2.2 of this Plan. However, any Eligible
Employee who was a Participant in the Plan on the effective date of this amendment shall
continue to be eligible to participate in the Plan.
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2.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of the entry date
under the Employer's group medical plan, the provisions of which are specifically incorporated
herein by reference, unless such Employee elects, during the Election Period, not to participate in
the Plan.
2.3 TERMINATION OF PARTICIPATION
A Participant shall no longer participate in this Plan upon the occurrence of any of
the following events:
(a) His termination of employment, subject to the provisions of
Section 2.5;
(b) The end of the Plan Year during which he became a limited
Participant because of a change in employment status pursuant to Section 2.4;
(c) His death; or
(d) The termination of this Plan, subject to the provisions of Section
8.2.
2.4 CHANGE OF EMPLOYMENT STATUS
If a Participant ceases to be eligible to participate because of a change in
employment status or classification (other than through termination of employment), the
Participant shall become a limited Participant in this Plan for the remainder of the Plan Year in
which such change of employment status occurs. As a limited Participant, no further Salary
Redirection may be made on behalf of the Participant, and, except as otherwise provided herein,
all further Benefit elections shall cease, subject to the limited Participant's right to continue
coverage under any Insurance Contracts. Subject to the provisions of Section 2.5, if the limited
Participant later becomes an Eligible Employee, then the limited Participant may again become a
full Participant in this Plan, provided he otherwise satisfies the participation requirements set
forth in this Article II as if he were a new Employee and made an election in accordance with
Section 5.1.
2.5 TERMINATION OF EMPLOYMENT
If a Participant's employment with the Employer is terminated for any reason
other than death, his participation in the Benefit Options provided under Section 4.1 shall cease,
subject to the Participant's right to COBRA (Consolidated Omnibus Budget Reconciliation Act)
continuation coverage under any Insurance Contract for which premiums have already been paid.
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ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 EMPLOYER CONTRIBUTION
The Employer shall make available to each Participant an Employer Contribution
in an amount to be determined by the Employer prior to the beginning of each Plan Year. Each
Participant's Employer Contribution shall be available to purchase Benefits as set forth in Section
4.1. The Employer's Contribution shall be made on behalf of the Participant on a pro rata basis
for each pay period. However, if such Participant fails to elect a Health Insurance Benefit
option, the Employer will automatically purchase an employee-only health insurance benefit for
such Participant whereby the Employer incurs the lowest premium payment expense available to
provide such health insurance benefit.
3.2 SALARY REDIRECTION
If a Participant's Employer Contribution is not sufficient to cover the total or
entire cost of Benefits or Premium Expenses he elects pursuant to Section 4. 1, his Compensation
will be reduced in an amount equal to the difference between the cost of Benefits he elected and
the amount of Employer Contribution available to him, and this shall be the maximum amount of
salary redirection available under this Plan. Such reduction shall be his Salary Redirection,
which the Employer will use on his behalf, together with his Employer Contribution, to pay for
the Benefits he elected. The amount of such Salary Redirection shall be specified in the Salary
Redirection Agreement and shall be applicable for a Plan Year. Notwithstanding the above, for
new Participants, the Salary Redirection Agreement shall only be applicable from the first day of
the pay period following the Employee's entry date up to and including the last day of the Plan
Year.
Any Salary Redirection shall be determined prior to the beginning of a Plan Year
(subject to initial elections pursuant to Section 5.1) and prior to the end of the Election Period
and shall be irrevocable for such Plan Year. However, a Participant may revoke a Benefit
election or a Salary Redirection Agreement after the Plan Year has commenced and make a new
election with respect to the remainder of the Plan Year, if both the revocation and the new
election are on account of and consistent with a change in status and such other permitted events
as determined under Article V of the Plan and consistent with the rules and regulations of the
Department of the Treasury. Salary Redirection amounts shall be contributed on a pro rata basis
for each pay period during the Plan Year. All individual Salary Redirection Agreements are
deemed to be part of this Plan and incorporated by reference hereunder.
3.3 APPLICATION OF CONTRIBUTIONS
As soon as reasonably practical after each payroll period, the Employer shall
apply the Employer Contribution and Salary Redirection necessary to provide for the Benefits
elected by the affected Participants.
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3.4 PERIODIC CONTRIBUTIONS
Notwithstanding the requirement provided above and in other Articles of this Plan
that Salary Redirections be contributed to the Plan by the Employer on behalf of an Employee on
a level and pro rata basis for each payroll period, the Employer and Administrator may
implement a procedure in which Salary Redirections are contributed throughout the Plan Year on
a periodic basis that is not pro rata for each payroll period.
ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS
Each Participant may elect any one or more of the following optional Benefits:
(1) Health Insurance Benefit
(2) Dental Insurance Benefit
(3) Vision Insurance Benefit
(4) Other Insurance Benefits offered under the Plan
4.2 HEALTH INSURANCE BENEFIT
(a) Each Participant may elect to be covered under a Health Insurance
Contract for the Participant, his or her spouse, and his or her Dependents.
However, if such Participant fails to elect a Health Insurance Benefit option, the
Employer will automatically purchase an employee-only health insurance benefit
for such Participant whereby the Employer incurs the lowest premium payment
expense available to provide such health insurance benefit.
(b) The Employer may select suitable Health Insurance Contracts for
use in providing this health insurance benefit, which policies will provide uniform
benefits for all Participants electing this Benefit.
(c) The rights and conditions with respect to the benefits payable from
such Health Insurance Contract shall be determined therefrom, and such
Insurance Contract shall be incorporated herein by reference.
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4.3 DENTAL INSURANCE BENEFIT
(a) Each Participant may elect to be covered under the Employer's
Dental Insurance Contract. In addition, the Participant may elect either individual
or dependant coverage under such Insurance Contract.
(b) The Employer may select suitable Dental Insurance Contracts for
use in providing this dental insurance benefit, which policies will provide uniform
benefits for all Participants electing this Benefit.
(c) The rights and conditions with respect to the benefits payable from
such Dental Insurance Contract shall be determined therefrom, and such Dental
Insurance Contract shall be incorporated herein by reference.
4.4 VISION INSURANCE BENEFIT
(a) Each Participant may elect to be covered under the Employer's
Vision Insurance Contract. In addition, the Participant may elect either individual
or dependent coverage.
(b) The Employer may select suitable Vision Insurance Contracts for
use in providing this Vision Insurance Benefit, which policies will provide
uniform benefits for all Participants electing this Benefit.
(c) The rights and conditions with respect to the benefits payable from
such Vision Insurance Contract shall be determined therefrom, and such Vision
Insurance Contract shall be incorporated herein by reference.
4.5 OTHER INSURANCE BENEFITS
(a) Employer selects contracts. The Employer may select additional
health or other policies allowed under Code Section 125 or allow the purchase of
additional health or other policies by and for Participants, which policies will
provide uniform benefits for all Participants electing this Benefit.
(b) Contract incorporated by reference. A description of these
Insurance Contracts is attached as Appendix A. The rights and conditions with
respect to the benefits payable from any additional Insurance Contract shall be
determined therefrom, and such Insurance Contract shall be incorporated herein
by reference.
4.6 NONDISCRIMINATION REQUIREMENTS
(a) It is the intent of this Plan to provide benefits to a classification of
employees which the Secretary of the Treasury finds not to be discriminatory in
favor of the group in whose favor discrimination may not occur under Code
Section 125.
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(b) If the Administrator deems it necessary to avoid discrimination or
possible taxation to either a group or groups of employees in whose favor
discrimination may not occur in violation of Code Section 125, it may, but shall
not be required to, reduce contributions or non-taxable Benefits in order to assure
compliance with this Section. Any act taken by the Administrator under this
Section shall be carried out in a uniform and nondiscriminatory manner. If the
Administrator decides to reduce contributions or non-taxable Benefits, it shall be
done in the following manner. First, the non-taxable Benefits of the affected
Participant (an employee who is highly compensated) who has the highest amount
of non-taxable Benefits for the Plan Year shall have his non-taxable Benefits
reduced until the discrimination tests set forth in this Section are satisfied or until
the amount of his non-taxable Benefits equals the non-taxable Benefits of the
affected Participant who has the second highest amount of non-taxable Benefits.
This process shall continue until the nondiscrimination tests set forth in this
Section are satisfied. With respect to any affected Participant who has had
Benefits reduced pursuant to this Section, the reduction shall be made
proportionately among insured Benefits. Contributions which are not utilized to
provide Benefits to any Participant by virtue of any administrative act under this
paragraph shall be forfeited and deposited into the benefit plan surplus.
ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS
An Employee who meets the eligibility requirements of Section 2.1 on the first
day of, or during, a Plan Year may elect to participate in this Plan for all or the remainder of such
Plan Year, provided he elects to do so before his effective date of participation pursuant to
Section 2.2. Employees who become eligible after the open enrollment period begins will be
required to elect their benefit options within one week of the date in which they become eligible
to participate in the Plan. Each Participant may elect to be covered under a Health Insurance
Contract for the Participant, his or her spouse, and his or her Dependents. However, if such
Participant fails to elect a Health Insurance Benefit option, the Employer will automatically
purchase an employee-only health insurance benefit for such Participant whereby the Employer
incurs the lowest premium payment expense available to provide such health insurance benefit.
5.2 SUBSEQUENT ANNUAL ELECTIONS
During the Election Period prior to each subsequent Plan Year, each Participant
shall be given the opportunity to modify his election. An Employee who fails to modify his or
her election for the Plan Year following the Election Period shall be deemed to have made the
same election as the prior year and will have to wait until the next Election Period before again
electing to modify his or her election in the Plan, except as provided for in Section 5.3. Each
Participant may elect to be covered under a Health Insurance Contract for the Participant, his or
her spouse, and his or her Dependents. However, if such Participant fails to elect a Health
Insurance Benefit option, the Employer will automatically purchase an employee-only health
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insurance benefit for such Participant whereby the Employer incurs the lowest premium payment
expense available to provide such health insurance benefit.
5.3 CHANGE IN STATUS
(a) Any Participant may change a Benefit election after the Plan Year
(to which such election relates) has commenced and make new elections with
respect to the remainder of such Plan Year if, under the facts and circumstances, the
changes are necessitated by and are consistent with a change in status which is
acceptable under rules and regulations adopted by the Department of the Treasury,
the provisions of which are incorporated by reference. Notwithstanding anything
herein to the contrary, if the rules and regulations conflict with the provisions of this
Plan, then such rules and regulations shall control.
In general, a change in election is not consistent if the change in status is the
Participant's divorce, annulment or legal separation from a spouse, the death of a
spouse or dependent, or a dependent ceasing to satisfy the eligibility requirements
for coverage, and the Participant's election under the Plan is to cancel accident or
health insurance coverage for any individual other than the one involved in such
event. If the Participant's spouse or dependent loses eligibility for coverage, then a
Participant's election under the Plan will decrease coverage for that individual under
the Plan. In addition, if the Participant's spouse or dependent gains eligibility for
coverage, then a Participant's election under the Plan for coverage will increase for
that individual under the Plan.
Regardless of the consistency requirement, if the individual, the individual's
spouse, or dependent becomes eligible for continuation coverage under the
Employer's group health plan as provided in Public Health Service Act (42 USC
300bb-1 et. seq.) or any similar state law, then the individual may elect to increase
payments under this Plan in order to pay for the continuation coverage. However,
this does not apply for COBRA eligibility due to divorce, annulment or legal
separation.
Any new election shall be effective at such time as the Administrator shall
prescribe, but not earlier than the first pay period beginning after the election is
properly executed in accordance with the procedures established by the
Administrator. For the purposes of this subsection, a change in status shall only
include the following events or other events permitted by Treasury regulations:
(1) Legal Marital Status: events that change a Participant's legal
marital status, including marriage, divorce, death of a spouse, legal
separation or annulment;
(2) Number of Dependents: Events that change a Participant's number
of dependents, including birth, adoption, placement for adoption, or death of
a dependent;
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(3) Employment Status: Any of the following events that change the
employment status of the Participant, spouse, or dependent: termination or
commencement of employment, a strike or lockout, commencement or
return from an unpaid leave of absence, or a change in worksite. In addition,
if the eligibility conditions of this Plan or other employee benefit plan of the
Employer of the Participant, spouse, or dependent depend on the
employment status of that individual and there is a change in that
individual's employment status with the consequence that the individual
becomes (or ceases to be) eligible under the plan, then that change
constitutes a change in employment under this subsection;
(4) Dependent satisfies or ceases to satisfy the eligibility requirements:
An event that causes the Participant's dependent to satisfy or cease to satisfy
the requirements for coverage due to attainment of age, student status, or
any similar circumstance; and
(5) Residency: A change in the place of residence of the Participant,
spouse or dependent, that would lead to a change in status (such as a loss of
HMO coverage).
(b) Notwithstanding subsection (a), the Participants may change an
election for health coverage during a Plan Year and make a new election that
corresponds with the special enrollment rights provided in American Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"). Such change
shall take place on a prospective basis, unless retroactive coverage is both
permitted by HIPAA and elected by the participant. An election for prospective
coverage shall be effective either as of the date the Plan Administrator is notified
of the special enrollment event or the 1 st day of the month following the date of
the special enrollment event, at the Participant's direction. An election for
retroactive coverage shall be effective as of the day of the special enrollment
event. Payment for prospective or retroactive coverage shall be made in
accordance with procedures established by the administrator in a uniform and
nondiscriminatory manner.
(c) Notwithstanding subsection (a), in the event of a judgment, decree,
or order ("order") resulting from a divorce, legal separation, annulment, or change
in legal custody which requires accident or health coverage for a Participant's
child (including a foster child who is a dependent of the Participant):
(1) The Plan may change a Participant's election to provide coverage
for the child if the order requires coverage under the Participant's plan; or
(2) The Participant shall be permitted to change an election to cancel
coverage for the child if the order requires the former spouse to provide
coverage for such child, under that individual's plan if verification of such
coverage is actually provided to the Administrator.
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(d) If the cost of a Benefit provided under the Plan increases or
decreases during a Plan Year, then the Plan shall automatically increase or
decrease, as the case may be, the Salary Redirections of all affected Participants
for such Benefit. Alternatively, if the cost of a benefit package option increases
significantly, the Administrator shall permit the affected Participants to either
make corresponding changes in their payments or revoke their elections and, in
lieu thereof, receive on a prospective basis coverage under another benefit
package option with similar coverage, or drop coverage prospectively if there is
no benefit package option with similar coverage.
A cost increase or decrease refers to an increase or decrease in the amount
of elective contributions under the Plan, whether resulting from an action taken by
the Employer or the insurer.
If the coverage under a Benefit is significantly curtailed or ceases during a
Plan Year, affected Participants may revoke their elections of such Benefit and, in
lieu thereof, elect to receive on a prospective basis coverage under another plan
with similar coverage, or drop coverage prospectively if no similar coverage is
offered.
If, during the period of coverage, a new benefit package option or other
coverage option is added, an existing benefit package option is significantly
improved, or an existing benefit package option or other coverage option is
eliminated, then the affected Participants may elect the newly-added option, or
elect another option if an option has been eliminated prospectively and make
corresponding election changes with respect to other benefit package options
providing similar coverage. In addition, those Eligible Employees who are not
participating in the Plan may opt to become Participants and elect the new or
newly improved benefit package option.
A Participant may make a prospective election change to add group health
coverage for the Participant, the Participant's spouse or dependent if such
individual loses group health coverage sponsored by a governmental or
educational institution, including a state children's health insurance program
under the Social Security Act, the Indian Health Service or a health program
offered by an Indian tribal government, a state health benefits risk pool, or a
foreign government group health plan.
A Participant may make a prospective election change that is on account
of and corresponds with a change made under the plan of a spouse's, former
spouse's or dependent's employer if (1) the cafeteria plan or other benefits plan of
the spouse's, former spouse's or dependent's employer permits its participants to
make a change; or (2) the cafeteria plan permits participants to make an election
for a period of coverage that is different from the period of coverage under the
cafeteria plan of a spouse's, former spouse's or dependent's employer.
11
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ARTICLE VI
BENEFITS AND RIGHTS
6.1 CLAIM FOR BENEFITS
(a) Any claim for Benefits underwritten by Insurance Contract(s) shall
be made to the Insurer. If the Insurer denies any claim, the Participant or
beneficiary shall follow the Insurer's claims review procedure.
ARTICLE VII
ADMINISTRATION
7.1 PLAN ADMINISTRATION
The operation of the Plan shall be under the supervision of the Administrator. It
shall be a principal duty of the Administrator to see that the Plan is carried out in accordance
with its terms, and for the exclusive benefit of Employees entitled to participate in the Plan. The
Administrator shall have full power to administer the Plan in all of its details, subject, however,
to the pertinent provisions of the Code. The Administrator's powers shall include, but shall not be
limited to the following authority, in addition to all other powers provided by this Plan:
(a) To make and enforce such rules and regulations as the
Administrator deems necessary or proper for the efficient administration of the
Plan;
(b) To interpret the Plan, the Administrator's interpretations thereof in
good faith to be final and conclusive on all persons claiming benefits by operation
of the Plan;
(c) To decide all questions concerning the Plan and the eligibility of
any person to participate in the Plan and to receive benefits provided by operation
of the Plan;
(d) To reject elections or to limit contributions or Benefits for certain
highly compensated participants if it deems such to be desirable in order to avoid
discrimination under the Plan in violation of applicable provisions of the Code;
(e) To provide Employees with a reasonable notification of their
benefits available by operation of the Plan;
(f) To appoint such agents, counsel, accountants, consultants, and
actuaries as may be required to assist in administering the Plan.
Any procedure, discretionary act, interpretation or construction taken by the
Administrator shall be done in a nondiscriminatory manner based upon uniform principles
consistently applied and shall be consistent with the intent that the Plan shall continue to comply
with the terms of Code Section 125 and the Treasury regulations thereunder.
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7.2 EXAMINATION OF RECORDS
The Administrator shall make available to each Participant, Eligible Employee
and any other Employee of the Employer such records as pertain to their interest under the Plan
for examination at reasonable times during normal business hours.
7.3 PAYMENT OF EXPENSES
Any reasonable administrative expenses shall be paid by the Employer unless the
Employer determines that administrative costs shall be borne by the Participants under the Plan
or by any Trust Fund which may be established hereunder. The Administrator may impose
reasonable conditions for payments, provided that such conditions shall not discriminate in favor
of highly compensated employees.
7.4 INSURANCE CONTROL CLAUSE
In the event of a conflict between the terms of this Plan and the terms of an
Insurance Contract of an independent third party Insurer whose product is then being used in
conjunction with this Plan, the terms of the Insurance Contract shall control as to those
Participants receiving coverage under such Insurance Contract. For this purpose, the Insurance
Contract shall control in defining the persons eligible for insurance, the dates of their eligibility,
the conditions which must be satisfied to become insured, if any, the benefits Participants are
entitled to and the circumstances under which insurance terminates.
7.5 INDEMNIFICATION OF ADMINISTRATOR
The Employer agrees to indemnify and to defend to the fullest extent permitted by
law any Employee serving as the Administrator or as a member of a committee designated as
Administrator (including any Employee or former Employee who previously served as
Administrator or as a member of such committee) against all liabilities, damages, costs and
expenses (including attorney's fees and amounts paid in settlement of any claims approved by the
Employer) occasioned by any act or omission to act in connection with the Plan, if such act or
omission is in good faith.
ARTICLE VIII
AMENDMENT OR TERMINATION OF PLAN
8.1 AMENDMENT
The Employer, at any time or from time to time, may amend any or all of the
provisions of the Plan without the consent of any Employee or Participant. No amendment shall
have the effect of modifying any benefit election of any Participant in effect at the time of such
amendment, unless such amendment is made to comply with Federal, state or local laws, statutes
or regulations.
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8.2 TERMINATION
The Employer is establishing this Plan with the intent that it will be maintained
for an indefinite period of time. Notwithstanding the foregoing, the Employer reserves the right
to terminate this Plan, in whole or in part, at any time. In the event the Plan is terminated, no
further contributions shall be made. Benefits under any Insurance Contract shall be paid in
accordance with the terms of the Insurance Contract.
ARTICLE IX
MISCELLANEOUS
9.1 PLAN INTERPRETATION
All provisions of this Plan shall be interpreted and applied in a uniform,
nondiscriminatory manner. This Plan shall be read in its entirety and not severed except as
provided in Section 9.12.
9.2 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter gender,
they shall be construed as though they were also used in another gender in all cases where they
would so apply, and whenever any words are used herein in the singular or plural form, they
shall be construed as though they were also used in the other form in all cases where they would
so apply.
9.3 WRITTEN DOCUMENT
This Plan, in conjunction with any separate written document which may be
required by law, is intended to satisfy the written Plan requirement of Code Section 125 and any
Treasury regulations thereunder relating to cafeteria plans.
9.4 EXCLUSIVE BENEFIT
This Plan shall be maintained for the exclusive benefit of the Employees who
participate in the Plan.
9.5 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute an employment contract between the
Employer and any Participant or to be a consideration or an inducement for the employment of
any Participant or Employee. Nothing contained in this Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of the Employer or to interfere
with the right of the Employer to discharge any Participant or Employee at any time regardless of
the effect which such discharge shall have upon him as a Participant of this Plan.
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9.6 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or required to do
or perform any act or matter or thing, it shall be done and performed by a person duly authorized
by its legally constituted authority.
9.7 EMPLOYER'S PROTECTIVE CLAUSES
(a) Upon the failure of either the Participant or the Employer to obtain
the insurance contemplated by this Plan (whether as a result of negligence, gross
neglect or otherwise), the Participant's Benefits shall be limited to the insurance
premium(s), if any, that remained unpaid for the period in question and the actual
insurance proceeds, if any, received by the Employer or the Participant as a result
of the Participant's claim.
(b) The Employer shall not be responsible for the validity of any
Insurance Contract issued hereunder or for the failure on the part of the Insurer to
make payments provided for under any Insurance Contract. Once insurance is
applied for or obtained, the Employer shall not be liable for any loss which may
result from the failure to pay Premiums to the extent Premium notices are not
received by the Employer.
9.8 NO GUARANTEE OF TAX CONSEQUENCES
Neither the Administrator nor the Employer makes any commitment or guarantee
that any amounts paid to or for the benefit of a Participant under the Plan will be excludable from
the Participant's gross income for federal or state income tax purposes, or that any other federal
or state tax treatment will apply to or be available to any Participant. It shall be the obligation of
each Participant to determine whether each payment under the Plan is excludable from the
Participant's gross income for federal and state income tax purposes, and to notify the Employer
if the Participant has reason to believe that any such payment is not so excludable.
Notwithstanding the foregoing, the rights of Participants under this Plan shall be legally
enforceable.
9.9 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS
If any Participant receives one or more payments or reimbursements under the
Plan that are not for a permitted Benefit, such Participant shall indemnify and reimburse the
Employer for any liability it may incur for failure to withhold federal or state income tax or
Social Security tax from such payments or reimbursements. However, such indemnification and
reimbursement shall not exceed the amount of additional federal and state income tax (plus any
penalties) that the Participant would have owed if the payments or reimbursements had been
made to the Participant as regular cash compensation, plus the Participant's share of any Social
Security tax that would have been paid on such compensation, less any such additional income
and Social Security tax actually paid by the Participant.
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9. 10 FUNDING
Unless otherwise required by law, contributions to the Plan need not be placed in
trust or dedicated to a specific Benefit, but may instead be considered general assets of the
Employer until the Premium Expense required under the Plan has been paid. Furthermore, and
unless otherwise required by law, nothing herein shall be construed to require the Employer or
the Administrator to maintain any fund or segregate any amount for the benefit of any
Participant, and no Participant or other person shall have any claim against, right to, or security
or other interest in, any fund, account or asset of the Employer from which any payment under
the Plan may be made.
9.11 GOVERNING LAW
This Plan is governed by the Code and the Treasury regulations issued thereunder
(as they might be amended from time to time). In no event shall the Employer guarantee the
favorable tax treatment sought by this Plan. To the extent not preempted by Federal law, the
provisions of this Plan shall be construed, enforced and administered according to the laws of the
State of Florida.
9.12 SEVERABILITY
If any provision of the Plan is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provisions of the Plan, and the Plan shall be construed
and enforced as if such provision had not been included herein.
9.13 CAPTIONS
The captions contained herein are inserted only as a matter of convenience and for
reference, and in no way define, limit, enlarge or describe the scope or intent of the Plan, nor in
any way shall affect the Plan or the construction of any provision thereof.
9.14 FAMILY AND MEDICAL LEAVE ACT
If a Participant initiates an FMLA Leave, he may revoke an existing election of
any accident or health plan coverage and make such other election for the remaining portion of
the coverage period as may be provided for under FMLA and in accordance with this Section,
but such Participant must continue to maintain, at least, individual coverage in the group medical
insurance plan.
In the event that any Participant takes an FMLA Leave, then such Participant shall
be entitled to continue participation in this Plan, or to be subsequently reinstated as a Participant
in this Plan, in accordance with the requirements of the Family and Medical Leave Act (or any
applicable state law that provides more generous family or medical leave).
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9.15 UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
Notwithstanding any provision of this Plan to the contrary, contributions, benefits
and service credit with respect to qualified military service shall be provided in accordance with
USERRA and the regulations thereunder.
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IN WITNESS WHEREOF, this Plan document is hereby executed this
day of , 2008.
Countersigned:
CITY OF CLEARWATER, FLORIDA
By:
Frank V. Hibbard William B. Horne II
Mayor City Manager
Approved as to form:
Leslie K. Dougall-Sides
Assistant City Attorney
Attest:
Cynthia E. Goudeau
City Clerk
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CITY OF CLEARWATER
CAFETERIA PLAN
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY ................................................................................................................ 3
2.2 EFFECTIVE DATE OF PARTICIPATION ................................................................... 3
2.3 APPLICATION TO PARTICIPATE ..............................................................................3
2.4 TERMINATION OF PARTICIPATION ........................................................................ 4
2.5 TERMINATION OF EMPLOYMENT AND CHANGE IN EMPLOYMENT
STATUS ........................................................................................................................4
2.6 DEATH ..........................................................................................................................4
ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 SALARY REDIRECTION ............................................................................................. 5
3.2 APPLICATION OF CONTRIBUTIONS ........................................................................5
3.3 PERIODIC CONTRIBUTIONS ..................................................................................... 5
ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS ......................................................................................................6
4.2 HEALTH FLEXIBLE SPENDING ACCOUNT BENEFIT ............................................6
4.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT BENEFIT ......................... 6
4.4 NONDISCRIMINATION REQUIREMENTS ................................................................6
ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS ................................................................ ...................................7
5.2 SUBSEQUENT ANNUAL ELECTIONS .................................... ...................................7
5.3 FAILURE TO ELECT ................................................................ ...................................7
5.4 CHANGE IN STATUS ............................................................... ................................... 8
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ARTICLE VI
HEALTH FLEXIBLE SPENDING ACCOUNT
6.1 ESTABLISHMENT OF PLAN ....................................................................................11
6.2 DEFINITIONS .............................................................................................................11
6.3 FORFEITURES ...........................................................................................................12
6.4 LIMITATION ON ALLOCATIONS ............................................................................12
6.5 NONDISCRIMINATION REQUIREMENTS ..............................................................12
6.6 COORDINATION WITH CAFETERIA PLAN ...........................................................13
6.7 HEALTH FLEXIBLE SPENDING ACCOUNT CLAIMS ...........................................13
ARTICLE VII
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT
7.1 ESTABLISHMENT OF ACCOUNT ....................................................................... .....14
7.2 DEFINITIONS ........................................................................................................ .....14
7.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS ................................. .....15
7.4 INCREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS ...... .....15
7.5 DECREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS ..... .....16
7.6 ALLOWABLE DEPENDENT CARE REIMBURSEMENT ................................... .....16
7.7 ANNUAL STATEMENT OF BENEFITS ............................................................... .....16
7.8 FORFEITURES ...................................................................................................... .....16
7.9 LIMITATION ON PAYMENTS ............................................................................. .....16
7.10 NONDISCRIMINATION REQUIREMENTS ......................................................... .....17
7.11 COORDINATION WITH CAFETERIA PLAN ...................................................... .....17
7.12 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT CLAIMS .................... ..... 17
ARTICLE VIII
BENEFITS AND RIGHTS
8.1 CLAIM FOR BENEFITS .............................................................................................19
8.2 APPLICATION OF BENEFIT PLAN SURPLUS ........................................................ 20
ARTICLE IX
ADMINISTRATION
9.1 PLAN ADMINISTRATION ........................................................................................20
9.2 EXAMINATION OF RECORDS .................................................................................21
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9.3 PAYMENT OF EXPENSES ........................................................................................21
9.4 INDEMNIFICATION OF ADMINISTRATOR ...........................................................21
ARTICLE X
AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENT ............................................................................................................ 22
10.2 TERMINATION .......................................................................................................... 22
ARTICLE XI
MISCELLANEOUS
11.1 PLAN INTERPRETATION ....................................................................... .................. 22
11.2 GENDER AND NUMBER ........................................................................ .................. 22
11.3 WRITTEN DOCUMENT ........................................................................... ..................22
11.4 EXCLUSIVE BENEFIT ............................................................................. ..................23
11.5 PARTICIPANT'S RIGHTS ........................................................................ ..................23
11.6 ACTION BY THE EMPLOYER ................................................................ ..................23
11.7 NO GUARANTEE OF TAX CONSEQUENCES ....................................... ..................23
11.8 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS .................. ..................23
11.9 FUNDING ................................................................................................. .................. 24
11.10 GOVERNING LAW .................................................................................. ..................24
11.11 SEVERABILITY ....................................................................................... .................. 24
11.12 CAPTIONS .................................................................................................................. 24
11.13 CONTINUATION OF COVERAGE ............................................................................24
11.14 FAMILY AND MEDICAL LEAVE ACT .................................................................... 24
11.15 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT ...............25
11.16 UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS
ACT ............................................................................................................................. 25
11.17 COMPLIANCE WITH HIPAA PRIVACY STANDARDS ..........................................25
11.18 COMPLIANCE WITH HIPAA ELECTRONIC SECURITY STANDARDS ...............27
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CITY OF CLEARWATER CAFETERIA PLAN
INTRODUCTION
The Employer has amended this Plan effective January 1, 2007, to recognize the
contribution made to the Employer by its Employees. Its purpose is to reward them by providing
benefits for those Employees who shall qualify hereunder and their dependents and beneficiaries.
The concept of this Plan is to allow Employees to choose among different types of benefits based
on their own particular goals, desires and needs. This Plan is a restatement of a Plan which was
originally effective on January 1, 2003. The Plan shall be known as City of Clearwater Cafeteria
Plan (the "Plan").
The intention of the Employer is that the Plan qualify as a "Cafeteria Plan" within
the meaning of Section 125 of the Internal Revenue Code of 1986, as amended, and that the
benefits which an Employee elects to receive under the Plan be excludable from the Employee's
income under Section 125(a) and other applicable sections of the Internal Revenue Code of
1986, as amended.
ARTICLE I
DEFINITIONS
1.1 "Administrator" means the individual(s) or corporation appointed by the
Employer to carry out the administration of the Plan. The Employer shall be empowered to
appoint and remove the Administrator from time to time as it deems necessary for the proper
administration of the Plan. In the event the Administrator has not been appointed, or resigns from
a prior appointment, the Employer shall be deemed to be the Administrator.
1.2 "Affiliated Employer" means the Employer and any corporation which is a
member of a controlled group of corporations (as defined in Code Section 414(b)) which
includes the Employer; any trade or business (whether or not incorporated) which is under
common control (as defined in Code Section 414(c)) with the Employer; any organization
(whether or not incorporated) which is a member of an affiliated service group (as defined in
Code Section 414(m)) which includes the Employer; and any other entity required to be
aggregated with the Employer pursuant to Treasury regulations under Code Section 414(0).
1.3 "Benefit" means any of the optional benefit choices available to a Participant as
outlined in Section 4.1.
1.4 RESERVED
1.5 "Code" means the Internal Revenue Code of 1986, as amended or replaced from
time to time.
1.6 "Compensation" means the dollar amounts received by the Participant from the
Employer during a Plan Year.
1.7 "Dependent" means any individual who qualifies as a dependent under an
Insurance Contract or under Code Section 152 (as modified by Code Section 105(b)).
1
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1.8 "Effective Date" means January 1, 2007.
1.9 "Election Period" means the period immediately preceding the beginning of each
Plan Year established by the Administrator, such period to be applied on a uniform and
nondiscriminatory basis for all Employees and Participants. However, an Employee's initial
Election Period shall be determined pursuant to Section 5.1.
1.10 "Eligible Employee" means any Employee who has satisfied the provisions of
Section 2.1. In addition, an individual who meets the requirements of Florida Statutes Chapter
112.0801 shall be eligible to participate in the Plan. However, the following individuals shall not
be an "Eligible Employee" and shall not participate in the Plan:
(a) individuals who are not reported on the payroll records of the Employer as
a common law employee. In particular, it is expressly intended that individuals
not treated as common law employees by the Employer on its payroll records are
not "Eligible Employees" and are excluded from Plan participation even if a court
or administrative agency determines that such individuals are common law
employees and not independent contractors.
(b) Employees who are classified on the books and records of the Employer as
part-time, temporary, seasonal or emergency employees.
(c) Employee or former Employee who is not eligible to receive medical
benefits pursuant to a group medical plan sponsored by the Employer.
(d) individuals whose employment is governed by the terms of a collective
bargaining agreement between Employee representatives and the Employer under
which benefits were subject of good faith bargaining agreed that such individuals
were excluded from the Plan.
(e) individuals who are "leased employees" as defined in Code Section
414(n)(2).
1.11 "Employee" means any person who is employed by the Employer.
1.12 "Employer" means City of Clearwater and any successor which shall maintain
this Plan; and any predecessor which has maintained this Plan.
1.13 "Highly Compensated Employee" means an Employee described in Code Section
414(q) and the regulations thereunder.
1.14 "Key Employee" means an Employee described in Code Section 416(i)(1) and the
regulations thereunder.
1.15 "Participant" means any Eligible Employee who elects to become a Participant
pursuant to Section 2.3 and has not for any reason become ineligible to participate further in the
Plan.
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1.16 "Plan" means this instrument, including all amendments thereto.
1.17 "Plan Year" means the 12-month period beginning January 1 and ending
December 31. The Plan Year shall be the coverage period for the Benefits provided for under
this Plan. In the event a Participant commences participation during a Plan Year, then the initial
coverage period shall be that portion of the Plan Year commencing on such Participant's date of
entry and ending on the last day of such Plan Year.
1.18 "Salary Redirection" means the contributions made by the Employer on behalf of
Participants pursuant to Section 3.1. These contributions shall be allocated to the funds or
accounts established under the Plan pursuant to the Participants' elections made under Article V.
1.19 "Salary Redirection Agreement" means an agreement between the Participant and
the Employer under which the Participant agrees to reduce his Compensation or to forego all or
part of the increases in such Compensation and to have such amounts contributed by the
Employer to the Plan on the Participant's behalf. The Salary Redirection Agreement shall apply
only to Compensation that has not been actually or constructively received by the Participant as
of the date of the agreement (after taking this Plan and Code Section 125 into account) and,
subsequently does not become currently available to the Participant.
1.20 "Spouse" means the legally married husband or wife of a Participant, unless
legally separated by court decree.
ARTICLE II
PARTICIPATION
2.1 ELIGIBILITY
Any Eligible Employee shall be eligible to participate hereunder as of his date of
employment (or the Effective Date of the Plan, if later). However, any Eligible Employee who
was a Participant in the Plan on the effective date of this amendment shall continue to be eligible
to participate in the Plan.
2.2 EFFECTIVE DATE OF PARTICIPATION
An Eligible Employee shall become a Participant effective as of the first day of
the month coinciding with or next following the date on which he met the eligibility
requirements of Section 2.1.
2.3 APPLICATION TO PARTICIPATE
An Employee who is eligible to participate in this Plan shall, during the applicable
Election Period, complete an application to participate and elect benefits in accordance with the
procedures established by the Administrator. The elections made in accordance with such
procedures shall be irrevocable until the end of the applicable Plan Year unless the Participant is
entitled to change his Benefit elections pursuant to Section 5.4 hereof.
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An Eligible Employee shall also be required to execute a Salary Redirection
Agreement during the Election Period for the Plan Year during which he wishes to participate in
this Plan. Any such Salary Redirection Agreement shall be effective for the first pay period
beginning on or after the Employee's effective date of participation pursuant to Section 2.2.
2.4 TERMINATION OF PARTICIPATION
A Participant shall no longer participate in this Plan upon the occurrence of any of the
following events:
(a) Termination of employment. His termination of employment,
subject to the provisions of Section 2.5;
(b) Change in employment status. The date he is no longer in a class of
Employees eligible for coverage or the date in which he incurs a change in his
employment status (other than through termination of employment) and is no
longer an Eligible Employee as defined in Section 1.10;
(c) Death. His death, subject to the provisions of Section 2.6; or
(d) Termination of the plan. The termination of this Plan, subject to
the provisions of Section 10.2.
2.5 TERMINATION OF EMPLOYMENT AND CHANGE IN EMPLOYMENT STATUS
If a Participant's employment with the Employer is terminated for any reason
other than death or the Participant incurs a change in employment status as described in Section
2.4, his participation in the Benefit Options provided under Section 4.1 shall cease, subject to the
Participant's right to continue coverage under any self-funded plan for which premiums have
already been paid. No further Salary Redirection contributions shall be made. However, such
Participant may submit claims for employment related Dependent Care Expense and Health
Flexible Spending reimbursements for claims incurred up to the date of termination and
submitted within 3 months following the close of the Plan Year in which the Participant
terminated
2.6 DEATH
If a Participant dies, his participation in the Plan shall cease. However, such
Participant's beneficiaries, or the representative of his estate, may submit claims for expenses
incurred up to the date of separation of employment or benefits for the remainder of the Plan
Year or until the amount allocated to each specific benefit are exhausted. A Participant may
designate a specific beneficiary for this purpose. If no such beneficiary is specified, the
Administrator may designate the Participant's Spouse, one of his Dependents or a representative
of his estate.
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ARTICLE III
CONTRIBUTIONS TO THE PLAN
3.1 SALARY REDIRECTION
Benefits under the Plan shall be financed by Salary Redirections sufficient to
support Benefits that a Participant has elected hereunder. This shall be the maximum amount of
salary redirection available under this Plan. The salary administration program of the Employer
shall be revised to allow each Participant to agree to reduce his pay during a Plan Year by an
amount determined necessary to purchase the elected Benefit Options. The amount of such
Salary Redirection shall be specified in the Salary Redirection Agreement and shall be applicable
for a Plan Year. Notwithstanding the above, for new Participants, the Salary Redirection
Agreement shall only be applicable from the first day of the pay period following the Employee's
entry date up to and including the last day of the Plan Year. These contributions shall be
allocated to the funds or accounts established under the Plan pursuant to the Participants'
elections made under Article V.
Any Salary Redirection shall be determined prior to the beginning of a Plan Year
(subject to initial elections pursuant to Section 5.1) and prior to the end of the Election Period
and shall be irrevocable for such Plan Year. However, a Participant may revoke a Benefit
election or a Salary Redirection Agreement after the Plan Year has commenced and make a new
election with respect to the remainder of the Plan Year, if both the revocation and the new
election are on account of and consistent with a change in status and such other permitted events
as determined under Article V of the Plan and consistent with the rules and regulations of the
Department of the Treasury. Salary Redirection amounts shall be contributed on a pro rata basis
for each pay period during the Plan Year. All individual Salary Redirection Agreements are
deemed to be part of this Plan and incorporated by reference hereunder.
3.2 APPLICATION OF CONTRIBUTIONS
As soon as reasonably practical after each payroll period, the Employer shall
apply the Salary Redirection necessary to provide for the Benefits elected by the affected
Participants. Any contribution made or withheld for the Health Flexible Spending Account or
Dependent Care Flexible Spending Account shall be credited to such fund or account.
3.3 PERIODIC CONTRIBUTIONS
Notwithstanding the requirement provided above and in other Articles of this Plan
that Salary Redirections be contributed to the Plan on a periodic basis by the Employer on behalf
of an Employee, the Employer and Administrator will implement a procedure in which Salary
Redirections are contributed throughout the Plan Year. However, with regard to the Health
Flexible Spending Account, the payment schedule for the required contributions may not be
based on the rate or amount of reimbursements during the Plan Year.
5
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ARTICLE IV
BENEFITS
4.1 BENEFIT OPTIONS
Each Participant may elect one or both of the following optional Benefits:
(1) Health Flexible Spending Account
(2) Dependent Care Flexible Spending Account
4.2 HEALTH FLEXIBLE SPENDING ACCOUNT BENEFIT
Each Participant may elect to participate in the Health Flexible Spending Account
option, in which case Article VI shall apply.
4.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT BENEFIT
Each Participant may elect to participate in the Dependent Care Flexible Spending
Account option, in which case Article VII shall apply.
4.4 NONDISCRIMINATION REQUIREMENTS
It is the intent of this Plan to provide benefits to a classification of employees
which the Secretary of the Treasury finds not to be discriminatory in favor of the group in whose
favor discrimination may not occur under Code Section 125.
If the Administrator deems it necessary to avoid discrimination or possible
taxation to a group of employees in whose favor discrimination may not occur in violation of
Code Section 125, it may, but shall not be required to, reject any election or reduce contributions
or non-taxable Benefits in order to assure compliance with this Section. Any act taken by the
Administrator under this Section shall be carried out in a uniform and nondiscriminatory manner.
If the Administrator decides to reject any election or reduce contributions or non-taxable
Benefits, it shall be done in the following manner. First, the non-taxable Benefits of the affected
Participant who is highly compensated, who has the highest amount of non-taxable Benefits for
the Plan Year shall have his non-taxable Benefits reduced until the discrimination tests set forth
in this Section are satisfied or until the amount of his non-taxable Benefits equals the non-taxable
Benefits of the affected Participant who has the second highest amount of non-taxable Benefits.
This process shall continue until the nondiscrimination tests set forth in this Section are satisfied.
With respect to any affected Participant who has had Benefits reduced pursuant to this Section,
the reduction shall be made proportionately among Health Flexible Spending Account Benefits
and Dependent Care Flexible Spending Account Benefits. Contributions which are not utilized to
provide Benefits to any Participant by virtue of any administrative act under this paragraph shall
be forfeited and deposited into the benefit plan surplus.
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ARTICLE V
PARTICIPANT ELECTIONS
5.1 INITIAL ELECTIONS
An Employee who meets the eligibility requirements of Section 2.1 on the first
day of, or during, a Plan Year may elect to participate in this Plan for all or the remainder of such
Plan Year, provided he elects to do so before his effective date of participation pursuant to
Section 2.2. An Employee who becomes eligible less than one week before the end of the open
enrollment period will be required to elect his or her benefit options within one week of the date
he or she became eligible to participate in the Plan. However, if such Employee does not
complete an application to participate and deliver it to the Administrator before such date, his
Election Period shall only be extended if the Administrator has established procedures for
extending the Election Period, provided such extended Election Period is applied on a uniform
and nondiscriminatory basis. In addition, if the Administrator establishes an extended Election
Period pursuant to this Section 5. 1, such benefit elections shall not be effective until the first pay
period following the later of such Participant's effective date of participation pursuant to Section
2.2 or the date of the receipt of the application by the Administrator, and shall be limited to the
Benefit expenses that are incurred by the Participant and/or dependents for the balance of the
Plan Year for which the election is made.
5.2 SUBSEQUENT ANNUAL ELECTIONS
During the Election Period prior to each subsequent Plan Year, each Participant
shall be given the opportunity to elect, in accordance with procedures established by the
Administrator, which Benefit options he wishes to select. Any such election shall be effective for
any Benefit expenses incurred during the Plan Year which follows the end of the Election Period.
With regard to subsequent annual elections, the following options shall apply:
(a) A Participant or Employee who failed to initially elect to
participate may elect different or new Benefits under the Plan during the Election
Period;
(b) A Participant may terminate his participation in the Plan by
notifying the Administrator in writing during the Election Period that he does not
want to participate in the Plan for the next Plan Year, or by not electing any
Benefit options;
(c) An Employee who elects not to participate for the Plan Year
following the Election Period will have to wait until the next Election Period
before again electing to participate in the Plan, except as provided for in Section
5.4.
5.3 FAILURE TO ELECT
Any Participant failing to participate in the benefit election process pursuant to
Section 5.2 by the end of the applicable Election Period shall be deemed to have elected not to
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participate in the Plan for the upcoming Plan Year. No further Salary Redirections shall therefore
be authorized for such subsequent Plan Year.
5.4 CHANGE IN STATUS
(a) Any Participant may change a Benefit election after the Plan Year
(to which such election relates) has commenced and make new elections with
respect to the remainder of such Plan Year if, under the facts and circumstances, the
changes are necessitated by and are consistent with a change in status which is
acceptable under rules and regulations adopted by the Department of the Treasury,
the provisions of which are incorporated by reference. Notwithstanding anything
herein to the contrary, if the rules and regulations conflict, then such rules and
regulations shall control.
In general, a change in election is not consistent if the change in status is
the Participant's divorce, annulment or legal separation from a spouse, the death
of a spouse or dependent, or a dependent ceasing to satisfy the eligibility
requirements for coverage, and the Participant's election under the Plan is to
begin or increase contributions to a flexible spending account. In addition, if a
change in status occurs as a result of a marriage, birth, or adoption, then a
Participant's election under the Plan to cease or decrease flexible spending
account contributions is not consistent with that change in status. Regardless, a
Participant may not reduce the flexible spending account election to an amount
less than an amount equal to the reimbursements previously issued to that
Participant during the current plan year.
Regardless of the consistency requirement, if the individual, the individual's
spouse, or dependent becomes eligible for continuation coverage under the
Employer's group health plan as provided in Public Health Service Act (42 USC
300bb-1 et. seq.) or any similar state law, then the individual may elect to increase
payments under this Plan in order to pay for the continuation coverage. However,
this does not apply for COBRA eligibility due to divorce, annulment or legal
separation.
Any new election shall be effective at such time as the Administrator shall
prescribe, but not earlier than the first pay period beginning after the election is
properly executed in accordance with the procedures established by the
Administrator. For the purposes of this subsection, a change in status shall only
include the following events or other events permitted by Treasury regulations:
(1) Legal Marital Status: events that change a Participant's legal
marital status, including marriage, divorce, death of a spouse, legal
separation or annulment;
(2) Number of Dependents: Events that change a Participant's number
of dependents, including birth, adoption, placement for adoption, or death of
a dependent;
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(3) Employment Status: Any of the following events that change the
employment status of the Participant, spouse, or dependent: termination or
commencement of employment, a strike or lockout, commencement or
return from an unpaid leave of absence, or a change in worksite. In addition,
if the eligibility conditions of this Plan or other employee benefit plan of the
Employer of the Participant, spouse, or dependent depend on the
employment status of that individual and there is a change in that
individual's employment status with the consequence that the individual
becomes (or ceases to be) eligible under the plan, then that change
constitutes a change in employment under this subsection; and
(4) Dependent satisfies or ceases to satisfy the eligibility requirements:
An event that causes the Participant's dependent to satisfy or cease to satisfy
the requirements for coverage due to attainment of age, student status, or
any similar circumstance.
For the Dependent Care Flexible Spending Account, a dependent becoming
or ceasing to be a "Qualifying Individual" as defined under Code Section 21(b)
shall also qualify as a change in status.
(b) Notwithstanding subsection (a), the Participants may change an
election for health coverage during a Plan Year and make a new election that
corresponds with the special enrollment rights provided in American Health
Insurance Portability and Accountability Act of 1996 ("HIPAA"). Such change
shall take place on a prospective basis, unless retroactive coverage is both
permitted by HIPAA and elected by the participant. An election for prospective
coverage shall be effective either as of the date the Plan Administrator is notified
of the special enrollment event or the 1 st day of the month following the date of
the special enrollment event, at the Participant's direction. An election for
retroactive coverage shall be effective as of the day of the special enrollment
event. Payment for prospective or retroactive coverage shall be made in
accordance with procedures established by the administrator in a uniform and
nondiscriminatory manner.
(c) Notwithstanding subsection (a), in the event of a judgment, decree,
or order ("order") resulting from a divorce, legal separation, annulment, or change
in legal custody which requires accident or health coverage for a Participant's
child (including a foster child who is a dependent of the Participant):
(1) The Plan may change a Participant's election to provide coverage
for the child if the order requires coverage under the Participant's plan; or
(2) The Participant shall be permitted to change an election to cancel
coverage for the child if the order requires the former spouse to provide
coverage for such child, under that individual's plan if verification of such
coverage is actually provided to the Administrator.
(d) If the cost of a Benefit provided under the Plan increases or
decreases during a Plan Year, then the Plan shall automatically increase or
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decrease, as the case may be, the Salary Redirections of all affected Participants
for such Benefit. Alternatively, if the cost of a benefit package option increases
significantly, the Administrator shall permit the affected Participants to either
make corresponding changes in their payments or revoke their elections and, in
lieu thereof, receive on a prospective basis coverage under another benefit
package option with similar coverage, or drop coverage prospectively if there is
no benefit package option with similar coverage.
A cost increase or decrease refers to an increase or decrease in the amount
of elective contributions under the Plan, whether resulting from an action taken by
the Employer or the insurer.
If the coverage under a Benefit is significantly curtailed or ceases during a
Plan Year, affected Participants may revoke their elections of such Benefit and, in
lieu thereof, elect to receive on a prospective basis coverage under another plan
with similar coverage, or drop coverage prospectively if no similar coverage is
offered.
If, during the period of coverage, a new benefit package option or other
coverage option is added, an existing benefit package option is significantly
improved, or an existing benefit package option or other coverage option is
eliminated, then the affected Participants may elect the newly-added option, or
elect another option if an option has been eliminated prospectively and make
corresponding election changes with respect to other benefit package options
providing similar coverage. In addition, those Eligible Employees who are not
participating in the Plan may opt to become Participants and elect the new or
newly improved benefit package option.
A Participant may make a prospective election change to add group health
coverage for the Participant, the Participant's spouse or dependent if such
individual loses group health coverage sponsored by a governmental or
educational institution, including a state children's health insurance program
under the Social Security Act, the Indian Health Service or a health program
offered by an Indian tribal government, a state health benefits risk pool, or a
foreign government group health plan.
A Participant may make a prospective election change that is on account
of and corresponds with a change made under the plan of a spouse's, former
spouse's or dependent's employer if (1) the cafeteria plan or other benefits plan of
the spouse's, former spouse's or dependent's employer permits its participants to
make a change; or (2) the cafeteria plan permits participants to make an election
for a period of coverage that is different from the period of coverage under the
cafeteria plan of a spouse's, former spouse's or dependent's employer.
A Participant may make a prospective election change that is on account
of and corresponds with a change by the Participant in the dependent care
provider. The availability of dependent care services from a new childcare
provider is similar to a new benefit package option becoming available. A cost
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change is allowable in the Dependent Care Flexible Spending Account only if the
cost change is imposed by a dependent care provider who is not related to the
Participant, as defined in Code Section 152(a)(1) through (8).
A Participant shall not be permitted to change an election to the Health
Flexible Spending Account as a result of a cost or coverage change under any
health insurance benefits.
ARTICLE VI
HEALTH FLEXIBLE SPENDING ACCOUNT
6.1 ESTABLISHMENT OF PLAN
This Health Flexible Spending Account is intended to qualify as a medical
reimbursement plan under Code Section 105 and shall be interpreted in a manner consistent with
such Code Section and the Treasury regulations thereunder. Participants who elect to participate
in this Health Flexible Spending Account may submit claims for the reimbursement of Medical
Expenses. All amounts reimbursed shall be periodically paid from amounts allocated to the
Health Flexible Spending Account. Periodic payments reimbursing Participants from the Health
Flexible Spending Account shall in no event occur less frequently than monthly.
6.2 DEFINITIONS
For the purposes of this Article and the Cafeteria Plan, the terms below have the
following meaning:
(a) "Health Flexible Spending Account" means the account
established for Participants pursuant to this Plan to which part of their
Compensation may be allocated and from which all allowable Medical Expenses
incurred by a Participant, his or her spouse and his or her Dependents may be
reimbursed.
(b) "Highly Compensated Participant" means, for the purposes of this
Article and determining discrimination under Code Section 105(h), a participant
who is:
(1) one of the 5 highest paid officers; or
(2) among the highest paid 25 percent of all Employees (other than
exclusions permitted by Code Section 105(h)(3)(B) for those individuals
who are not Participants).
(c) "Medical Expenses" means any expense for medical care within
the meaning of the term "medical care" as defined in Code Section 213(d) and as
allowed under Code Section 105 and the rulings and Treasury regulations
thereunder, and not otherwise used by the Participant as a deduction in
determining his tax liability under the Code. "Medical Expenses" can be incurred
by the Participant, his or her spouse and his or her Dependents.
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A Participant may not be reimbursed for the cost of other health coverage
such as premiums paid under plans maintained by the employer of the
Participant's spouse or individual policies maintained by the Participant or his
spouse or Dependent.
A Participant may not be reimbursed for "qualified long-term care
services" as defined in Code Section 770213(c).
(d) The definitions of Article I of this Plan are hereby incorporated by
reference to the extent necessary to interpret and apply the provisions of this
Health Flexible Spending Account.
6.3 FORFEITURES
The account balance remaining in the Health Flexible Spending Account as of the
end of any Plan Year (and after the processing of all claims for such Plan Year pursuant to
Section 6.7 hereof) shall be forfeited by the Participant and credited to the benefit plan surplus.
In such event, the Participant shall have no further claim to such amount for any reason, subject
to Section 8.2.
6.4 LIMITATION ON ALLOCATIONS
Notwithstanding any provision contained in this Plan to the contrary, no more
than the amount established by the Administrator or allowable by law may be allocated to the
Health Flexible Spending Account by a Participant in any Plan Year.
6.5 NONDISCRIMINATION REQUIREMENTS
(a) It is the intent of this Health Flexible Spending Account not to
discriminate in violation of the Code and the Treasury regulations thereunder.
(b) If the Administrator deems it necessary to avoid discrimination
under this Health Flexible Spending Account, it may, but shall not be required to,
reject any elections or reduce contributions or Benefits in order to assure
compliance with this Section. Any act taken by the Administrator under this
Section shall be carried out in a uniform and nondiscriminatory manner. If the
Administrator decides to reject any elections or reduce contributions or Benefits,
it shall be done in the following manner. First, the Benefits designated for the
Health Flexible Spending Account by the member of the group in whose favor
discrimination may not occur pursuant to Code Section 105 that elected to
contribute the highest amount to the fund for the Plan Year shall be reduced until
the nondiscrimination tests set forth in this Section or the Code are satisfied, or
until the amount designated for the fund equals the amount designated for the
fund by the next member of the group in whose favor discrimination may not
occur pursuant to Code Section 105 who has elected the second highest
contribution to the Health Flexible Spending Account for the Plan Year. This
process shall continue until the nondiscrimination tests set forth in this Section or
the Code are satisfied. Contributions which are not utilized to provide Benefits to
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any Participant by virtue of any administrative act under this paragraph shall be
forfeited and credited to the benefit plan surplus.
6.6 COORDINATION WITH CAFETERIA PLAN
All Participants under the Cafeteria Plan are eligible to receive Benefits under this
Health Flexible Spending Account. The enrollment under the Cafeteria Plan shall constitute
enrollment under this Health Flexible Spending Account. In addition, other matters concerning
contributions, elections and the like shall be governed by the general provisions of the Cafeteria
Plan.
6.7 HEALTH FLEXIBLE SPENDING ACCOUNT CLAIMS
(a) All Medical Expenses incurred by a Participant, his or her spouse
and his or her Dependents shall be reimbursed during the Plan Year subject to
Section 6.7(d), even though the submission of such a claim occurs after his
participation hereunder ceases; but provided that the Medical Expenses were
incurred during the applicable Plan Year. Medical Expenses are treated as having
been incurred when the Participant is provided with the medical care that gives
rise to the medical expenses, not when the Participant is formally billed or
charged for, or pays for the medical care.
(b) The Administrator shall direct the reimbursement to each eligible
Participant for all allowable Medical Expenses, up to a maximum of the amount
designated by the Participant for the Health Flexible Spending Account for the
Plan Year. Reimbursements shall be made available to the Participant throughout
the year without regard to the amount of Compensation which has been allocated
to the fund at any given point in time. Furthermore, a Participant shall be entitled
to reimbursements only for amounts in excess of any payments or other
reimbursements under any health care plan covering the Participant and/or his
Spouse or Dependents.
(c) Reimbursement payments under this Plan shall be made directly to
the Participant. However, in the Administrator's discretion, payments may be
made directly to the service provider. The application for payment or
reimbursement shall be made to the Administrator in the prescribed manner and
within a reasonable time of incurring the debt or paying for the service. The
application shall include a written statement from an independent third party
stating that the Medical Expense has been incurred and the amount of such
expense. Furthermore, the Participant shall provide a written statement that the
Medical Expense has not been reimbursed or is not reimbursable under any other
health plan coverage and, if reimbursed from the Health Flexible Spending
Account, such amount will not be claimed as a tax deduction. The Administrator
shall retain a file of all such applications.
(d) Claims for the reimbursement of Medical Expenses incurred in any
Plan Year shall be paid as soon after a claim has been filed as is administratively
practicable; provided however, that if a Participant fails to submit a claim within 3
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months after the end of the Plan Year, those Medical Expense claims shall not be
considered for reimbursement by the Administrator. If a Participant terminates
employment during the Plan Year, claims for the reimbursement of Medical
Expenses must also be submitted within 3 months following the close of the Plan
Year in which the Participant terminated employment.
ARTICLE VII
DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT
7.1 ESTABLISHMENT OF ACCOUNT
This Dependent Care Flexible Spending Account is intended to qualify as a
program under Code Section 129 and shall be interpreted in a manner consistent with such Code
Section. Participants who elect to participate in this program may submit claims for the
reimbursement of Employment-Related Dependent Care Expenses. All amounts reimbursed shall
be paid from amounts allocated to the Participant's Dependent Care Flexible Spending Account.
7.2 DEFINITIONS
For the purposes of this Article and the Cafeteria Plan the terms below shall have
the following meaning:
(a) "Dependent Care Flexible Spending Account" means the account
established for a Participant pursuant to this Article to which part of his
Compensation may be allocated and from which Employment-Related Dependent
Care Expenses of the Participant may be reimbursed for the care of the Qualifying
Dependents of Participants.
(b) "Earned Income" means earned income as defined under Code
Section 32(c)(2), but excluding such amounts paid or incurred by the Employer
for dependent care assistance to the Participant.
(c) "Employment-Related Dependent Care Expenses" means the
amounts paid for expenses of a Participant for those services which if paid by the
Participant would be considered employment related expenses under Code
Section 21(b)(2). Generally, they shall include expenses for household services
and for the care of a Qualifying Dependent, to the extent that such expenses are
incurred to enable the Participant to be gainfully employed for any period for
which there is one or more Qualifying Dependents with respect to such
Participant. Employment-Related Dependent Care Expenses are treated as having
been incurred when the Participant's Qualifying Dependents are provided with the
dependent care that gives rise to the Employment-Related Dependent Care
Expenses, not when the Participant is formally billed or charged for, or pays for
the dependent care. The determination of whether an amount qualifies as an
Employment-Related Dependent Care Expense shall be made subject to the
following rules:
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(1) If such amounts are paid for expenses incurred outside the
Participant's household, they shall constitute Employment-Related
Dependent Care Expenses only if incurred for a Qualifying Dependent as
defined in Section 7.2(d)(1) (or deemed to be, as described in Section
7.2(d)(1) pursuant to Section 7.2(d)(3)), or for a Qualifying Dependent as
defined in Section 7.2(d)(2) (or deemed to be, as described in Section
7.2(d)(2) pursuant to Section 7.2(d)(3)) who regularly spends at least 8
hours per day in the Participant's household;
(2) If the expense is incurred outside the Participant's home at a
facility that provides care for a fee, payment, or grant for more than 6
individuals who do not regularly reside at the facility, the facility must
comply with all applicable state and local laws and regulations, including
licensing requirements, if any; and
(3) Employment-Related Dependent Care Expenses of a Participant
shall not include amounts paid or incurred to a child of such Participant
who is under the age of 19 or to an individual who is a dependent of such
Participant or such Participant's Spouse.
(d) "Qualifying Dependent" means, for Dependent Care Flexible
Spending Account purposes,
(1) a Participant's Dependent (as defined in Code Section 152(a)(1))
who has not attained age 13;
(2) a Dependent or the Spouse of a Participant who is physically or
mentally incapable of caring for himself or herself and has the same
principal place of abode as the Participant for more than one-half of such
taxable year; or
(3) a child that is deemed to be a Qualifying Dependent described in
paragraph (1) or (2) above, whichever is appropriate, pursuant to Code
Section 21(e)(5).
(e) The definitions of Article I of this Plan are hereby incorporated by
reference to the extent necessary to interpret and apply the provisions of this
Dependent Care Flexible Spending Account.
7.3 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
The Administrator shall establish a Dependent Care Flexible Spending Account
for each Participant who elects to apply for Dependent Care Flexible Spending Account benefits.
7.4 INCREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
A Participant's Dependent Care Flexible Spending Account shall be increased
each pay period by the portion of his Compensation that he has elected to apply toward his
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Dependent Care Flexible Spending Account pursuant to elections made under Article V hereof.
7.5 DECREASES IN DEPENDENT CARE FLEXIBLE SPENDING ACCOUNTS
A Participant's Dependent Care Flexible Spending Account shall be reduced by
the amount of any Employment-Related Dependent Care Expense reimbursements paid or
incurred on behalf of a Participant pursuant to Section 7.12 hereof.
7.6 ALLOWABLE DEPENDENT CARE REIMBURSEMENT
Subject to limitations contained in Section 7.9 of this Program, and to the extent
of the amount contained in the Participant's Dependent Care Flexible Spending Account, a
Participant who incurs Employment-Related Dependent Care Expenses shall be entitled to
receive from the Employer full reimbursement for the entire amount of such expenses incurred
during the Plan Year or portion thereof during which he is a Participant. However, a Participant
may only be reimbursed from such Participant's Dependent Care Flexible Spending Account to
the extent the account balance is funded.
7.7 ANNUAL STATEMENT OF BENEFITS
On or before January 31 st of each calendar year, the Employer shall furnish to
each Employee who was a Participant and received benefits under Section 7.6 during the prior
calendar year, a statement of all such benefits paid to or on behalf of such Participant during the
prior calendar year.
7.8 FORFEITURES
The dollar amount in a Participant's Dependent Care Flexible Spending Account
as of the end of any Plan Year (and after the processing of all claims for such Plan Year pursuant
to Section 7.12 hereof) shall be forfeited by the Participant and credited to the benefit plan
surplus. In such event, the Participant shall have no further claim to such amount for any reason,
subject to Section 8.2.
7.9 LIMITATION ON PAYMENTS
Notwithstanding any provision contained in this Article to the contrary, amounts
paid from a Participant's Dependent Care Flexible Spending Account in or on account of any
taxable year of the Participant shall not exceed the lesser of the Earned Income limitation
described in Code Section 129(b) or $5,000 ($2,500 if a separate tax return is filed by a
Participant who is married as determined under the rules of paragraphs (3) and (4) of Code
Section 21(e)).
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7.10 NONDISCRIMINATION REQUIREMENTS
(a) It is the intent of this Dependent Care Flexible Spending Account
that contributions or benefits not discriminate in favor of the group of employees
in whose favor discrimination may not occur under Code Section 129(d).
(b) If the Administrator deems it necessary to avoid discrimination or
possible taxation to a group of employees in whose favor discrimination may not
occur in violation of Code Section 129 it may, but shall not be required to, reject
any elections or reduce contributions or non-taxable benefits in order to assure
compliance with this Section. Any act taken by the Administrator under this
Section shall be carried out in a uniform and nondiscriminatory manner. If the
Administrator decides to reject any elections or reduce contributions or Benefits,
it shall be done in the following manner. First, the Benefits designated for the
Dependent Care Flexible Spending Account by the affected Participant that
elected to contribute the highest amount to such account for the Plan Year shall be
reduced until the nondiscrimination tests set forth in this Section are satisfied, or
until the amount designated for the account equals the amount designated for the
account of the affected Participant who has elected the second highest
contribution to the Dependent Care Flexible Spending Account for the Plan Year.
This process shall continue until the nondiscrimination tests set forth in this
Section are satisfied. Contributions which are not utilized to provide Benefits to
any Participant by virtue of any administrative act under this paragraph shall be
forfeited.
7.11 COORDINATION WITH CAFETERIA PLAN
All Participants under the Cafeteria Plan are eligible to receive Benefits under this
Dependent Care Flexible Spending Account. The enrollment and termination of participation
under the Cafeteria Plan shall constitute enrollment and termination of participation under this
Dependent Care Flexible Spending Account. In addition, other matters concerning contributions,
elections and the like shall be governed by the general provisions of the Cafeteria Plan.
7.12 DEPENDENT CARE FLEXIBLE SPENDING ACCOUNT CLAIMS
The Administrator shall direct the payment of all such Dependent Care claims to
the Participant upon the presentation to the Administrator of documentation of such expenses in
a form satisfactory to the Administrator. However, in the Administrator's discretion, payments
may be made directly to the service provider. In its discretion in administering the Plan, the
Administrator may utilize forms and require documentation of costs as may be necessary to
verify the claims submitted. At a minimum, the requirements shall include a statement from an
independent third party as proof that the expense has been incurred and the amount of such
expense. In addition, the Administrator may require that each Participant who desires to receive
reimbursement under this Program for Employment-Related Dependent Care Expenses submit a
statement which may contain some or all of the following information:
(a) The name of the Dependent or Dependents for whom the services
were performed;
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(b) The nature of the services performed for the Participant, the cost of
which he wishes reimbursement;
(c) The relationship, if any, of the person performing the services to
the Participant;
(d) If the services are being performed by a child of the Participant,
the age of the child;
(e) A statement as to where the services were performed;
(f) If any of the services were performed outside the home, a
statement as to whether the Dependent for whom such services were performed
spends at least 8 hours a day in the Participant's household;
(g) If the services were being performed in a day care center, a
statement:
(1) that the day care center complies with all applicable laws and
regulations of the state of residence,
(2) that the day care center provides care for more than 6 individuals
(other than individuals residing at the center), and
(3) of the amount of fee paid to the provider.
(h) If the Participant is married, a statement containing the following:
(1) the Spouse's salary or wages if he or she is employed, or
(2) if the Participant's Spouse is not employed, that
(i) he or she is incapacitated, or
(ii) he or she is a full-time student attending an educational
institution and the months during the year which he or she attended
such institution.
(i) If a Participant fails to submit a claim within 3 months after the
end of the Plan Year, those claims shall not be considered for reimbursement by
the Administrator. In addition, if a Participant terminates employment during the
Plan Year, claims for reimbursement must also be submitted within 3 months
after the close of the Plan Year in which such Participant terminates employment.
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ARTICLE VIII
BENEFITS AND RIGHTS
8.1 CLAIM FOR BENEFITS
(a) Any claim for Dependent Care Flexible Spending Account or
Health Flexible Spending Account Benefits shall be made to the Administrator.
For both the Health Flexible Spending Account and the Dependent Care Flexible
Spending Account, if a Participant fails to submit a claim within 3 months after
the end of the Plan Year, those claims shall not be considered for reimbursement
by the Administrator. In addition, if a Participant terminates employment during
the Plan Year, claims for the reimbursement of benefits from the Dependent Care
Flexible Spending Account and/or health Flexible Spending account must also be
submitted within 3 months following the close of the Plan Year in which the
Participant terminates employment. If the Administrator denies a claim, the
Administrator may provide notice to the Participant or beneficiary, in writing,
within 90 days after the claim is filed unless special circumstances require an
extension of time for processing the claim. The notice of a denial of a claim shall
be written in a manner calculated to be understood by the claimant and shall set
forth:
(1) specific references to the pertinent Plan provisions on which the
denial is based;
(2) a description of any additional material or information necessary
for the claimant to perfect the claim and an explanation as to why such
information is necessary; and
(3) an explanation of the Plan's claim procedure.
(b) Within 60 days after receipt of the above material, the claimant
shall have a reasonable opportunity to appeal the claim denial to the
Administrator for a full and fair review. The claimant or his duly authorized
representative may:
(1) request a review upon written notice to the Administrator;
(2) review pertinent documents; and
(3) submit issues and comments in writing.
(c) A decision on the review by the Administrator will be made not
later than 60 days after receipt of a request for review, unless special
circumstances require an extension of time for processing (such as the need to
hold a hearing), in which event a decision should be rendered as soon as possible,
but in no event later than 120 days after such receipt. The decision of the
Administrator shall be written and shall include specific reasons for the decision,
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written in a manner calculated to be understood by the claimant, with specific
references to the pertinent Plan provisions on which the decision is based.
(d) Any balance remaining in the Participant's Dependent Care
Flexible Spending Account or Health Flexible Spending Account as of the end of
the time for claims reimbursement for each Plan Year shall be forfeited and
deposited in the benefit plan surplus of the Employer pursuant to Section 6.3 or
Section 7.8 of the Plan, whichever is applicable, unless the Participant had made a
claim for such Plan Year, in writing, which has been denied or is pending; in
which event the amount of the claim shall be held in his account until the claim
appeal procedures set forth above have been satisfied or the claim is paid. If any
such claim is denied on appeal, the amount held beyond the end of the Plan Year
shall be forfeited and credited to the benefit plan surplus.
8.2 APPLICATION OF BENEFIT PLAN SURPLUS
Any forfeited amounts credited to the benefit plan surplus by virtue of the failure
of a Participant to incur a qualified expense or seek reimbursement in a timely manner may, but
need not be, separately accounted for after the close of the Plan Year (or after such further time
specified herein for the filing of claims) in which such forfeitures arose. In no event shall such
amounts be carried over to reimburse a Participant for expenses incurred during a subsequent
Plan Year for the same or any other Benefit available under the Plan; nor shall amounts forfeited
by a particular Participant be made available to such Participant in any other form or manner,
except as permitted by Treasury regulations. Amounts in the benefit plan surplus shall first be
used to defray any administrative costs and experience losses and thereafter be retained by the
Employer.
ARTICLE IX
ADMINISTRATION
9.1 PLAN ADMINISTRATION
The operation of the Plan shall be under the supervision of the Administrator. It
shall be a principal duty of the Administrator to see that the Plan is carried out in accordance
with its terms, and for the exclusive benefit of Employees entitled to participate in the Plan. The
Administrator shall have full power to administer the Plan in all of its details, subject, however,
to the pertinent provisions of the Code. The Administrator's powers shall include, but shall not be
limited to the following authority, in addition to all other powers provided by this Plan:
(a) To make and enforce such rules and regulations as the
Administrator deems necessary or proper for the efficient administration of the
Plan;
(b) To interpret the Plan, the Administrator's interpretations thereof in
good faith to be final and conclusive on all persons claiming benefits by operation
of the Plan;
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(c) To decide all questions concerning the Plan and the eligibility of
any person to participate in the Plan and to receive benefits provided by operation
of the Plan;
(d) To reject elections or to limit contributions or Benefits for certain
highly compensated participants if it deems such to be desirable in order to avoid
discrimination under the Plan in violation of applicable provisions of the Code;
(e) To provide Employees with a reasonable notification of their
benefits available by operation of the Plan;
(f) To approve reimbursement requests and to authorize the payment
of benefits; and
(g) To appoint such agents, counsel, accountants, consultants, and
actuaries as may be required to assist in administering the Plan.
Any procedure, discretionary act, interpretation or construction taken by the
Administrator shall be done in a nondiscriminatory manner based upon uniform principles
consistently applied and shall be consistent with the intent that the Plan shall continue to comply
with the terms of Code Section 125 and the Treasury regulations thereunder.
9.2 EXAMINATION OF RECORDS
The Administrator shall make available to each Participant, Eligible Employee
and any other Employee of the Employer such records as pertain to their interest under the Plan
for examination at reasonable times during normal business hours.
9.3 PAYMENT OF EXPENSES
Any reasonable administrative expenses shall be paid by the Employer unless the
Employer determines that administrative costs shall be borne by the Participants under the Plan
or by any Trust Fund which may be established hereunder. The Administrator may impose
reasonable conditions for payments, provided that such conditions shall not discriminate in favor
of highly compensated employees.
9.4 INDEMNIFICATION OF ADMINISTRATOR
The Employer agrees to indemnify and to defend to the fullest extent permitted by
law any Employee serving as the Administrator or as a member of a committee designated as
Administrator (including any Employee or former Employee who previously served as
Administrator or as a member of such committee) against all liabilities, damages, costs and
expenses (including attorney's fees and amounts paid in settlement of any claims approved by the
Employer) occasioned by any act or omission to act in connection with the Plan, if such act or
omission is in good faith.
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ARTICLE X
AMENDMENT OR TERMINATION OF PLAN
10.1 AMENDMENT
The Employer, at any time or from time to time, may amend any or all of the
provisions of the Plan without the consent of any Employee or Participant. No amendment shall
have the effect of modifying any benefit election of any Participant in effect at the time of such
amendment, unless such amendment is made to comply with Federal, state or local laws, statutes
or regulations.
10.2 TERMINATION
The Employer is establishing this Plan with the intent that it will be maintained
for an indefinite period of time. Notwithstanding the foregoing, the Employer reserves the right
to terminate this Plan, in whole or in part, at any time. In the event the Plan is terminated, no
further contributions shall be made.
No further additions shall be made to the Health Flexible Spending Account or
Dependent Care Flexible Spending Account, but all payments from such fund shall continue to
be made according to the elections in effect until 90 days after the termination date of the Plan.
Any amounts remaining in any such fund or account as of the end of such period shall be
forfeited and deposited in the benefit plan surplus after the expiration of the filing period.
ARTICLE XI
MISCELLANEOUS
11.1 PLAN INTERPRETATION
All provisions of this Plan shall be interpreted and applied in a uniform,
nondiscriminatory manner. This Plan shall be read in its entirety and not severed except as
provided in Section 11.11.
11.2 GENDER AND NUMBER
Wherever any words are used herein in the masculine, feminine or neuter gender,
they shall be construed as though they were also used in another gender in all cases where they
would so apply, and whenever any words are used herein in the singular or plural form, they
shall be construed as though they were also used in the other form in all cases where they would
so apply.
11.3 WRITTEN DOCUMENT
This Plan, in conjunction with any separate written document which may be
required by law, is intended to satisfy the written Plan requirement of Code Section 125 and any
Treasury regulations thereunder relating to cafeteria plans.
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11.4 EXCLUSIVE BENEFIT
This Plan shall be maintained for the exclusive benefit of the Employees who
participate in the Plan.
11.5 PARTICIPANT'S RIGHTS
This Plan shall not be deemed to constitute an employment contract between the
Employer and any Participant or to be a consideration or an inducement for the employment of
any Participant or Employee. Nothing contained in this Plan shall be deemed to give any
Participant or Employee the right to be retained in the service of the Employer or to interfere
with the right of the Employer to discharge any Participant or Employee at any time regardless of
the effect which such discharge shall have upon him as a Participant of this Plan.
11.6 ACTION BY THE EMPLOYER
Whenever the Employer under the terms of the Plan is permitted or required to do
or perform any act or matter or thing, it shall be done and performed by a person duly authorized
by its legally constituted authority.
11.7 NO GUARANTEE OF TAX CONSEQUENCES
Neither the Administrator nor the Employer makes any commitment or guarantee
that any amounts paid to or for the benefit of a Participant under the Plan will be excludable from
the Participant's gross income for federal or state income tax purposes, or that any other federal
or state tax treatment will apply to or be available to any Participant. It shall be the obligation of
each Participant to determine whether each payment under the Plan is excludable from the
Participant's gross income for federal and state income tax purposes, and to notify the Employer
if the Participant has reason to believe that any such payment is not so excludable.
Notwithstanding the foregoing, the rights of Participants under this Plan shall be legally
enforceable.
11.8 INDEMNIFICATION OF EMPLOYER BY PARTICIPANTS
If any Participant receives one or more payments or reimbursements under the
Plan that are not for a permitted Benefit, such Participant shall indemnify and reimburse the
Employer for any liability it may incur for failure to withhold federal or state income tax or
Social Security tax from such payments or reimbursements. However, such indemnification and
reimbursement shall not exceed the amount of additional federal and state income tax (plus any
penalties) that the Participant would have owed if the payments or reimbursements had been
made to the Participant as regular cash compensation, plus the Participant's share of any Social
Security tax that would have been paid on such compensation, less any such additional income
and Social Security tax actually paid by the Participant.
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11.9 FUNDING
Unless otherwise required by law, contributions to the Plan need not be placed in
trust or dedicated to a specific Benefit, but may instead be considered general assets of the
Employer. Furthermore, and unless otherwise required by law, nothing herein shall be construed
to require the Employer or the Administrator to maintain any fund or segregate any amount for
the benefit of any Participant, and no Participant or other person shall have any claim against,
right to, or security or other interest in, any fund, account or asset of the Employer from which
any payment under the Plan may be made.
11.10 GOVERNING LAW
This Plan is governed by the Code and the Treasury regulations issued thereunder
(as they might be amended from time to time). In no event shall the Employer guarantee the
favorable tax treatment sought by this Plan. To the extent not preempted by Federal law, the
provisions of this Plan shall be construed, enforced and administered according to the laws of the
State of Florida.
11.11 SEVERABILITY
If any provision of the Plan is held invalid or unenforceable, its invalidity or
unenforceability shall not affect any other provisions of the Plan, and the Plan shall be construed
and enforced as if such provision had not been included herein.
11.12 CAPTIONS
The captions contained herein are inserted only as a matter of convenience and for
reference, and in no way define, limit, enlarge or describe the scope or intent of the Plan, nor in
any way shall affect the Plan or the construction of any provision thereof.
11.13 CONTINUATION OF COVERAGE
Notwithstanding anything in the Plan to the contrary, in the event any benefit
under this Plan subject to the continuation coverage requirement of Public Health Service Act
("PHSA") becomes unavailable, each Participant will be entitled to continuation coverage as
prescribed in PHSA, and related regulations. If during the Plan Year, the Employer employs
fewer than twenty (20) employees on a typical business day, this Section shall not apply.
11.14 FAMILY AND MEDICAL LEAVE ACT
Notwithstanding anything in the Plan to the contrary, in the event any benefit
under this Plan becomes subject to the requirements of the Family and Medical Leave Act and
regulations thereunder, this Plan shall be operated in accordance with Regulation 1.125-3.
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11. 15 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT
Notwithstanding anything in this Plan to the contrary, this Plan shall be operated in
accordance with HIPAA and regulations thereunder.
11.16 UNIFORM SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
Notwithstanding any provision of this Plan to the contrary, contributions, benefits
and service credit with respect to qualified military service shall be provided in accordance with
USERRA and the regulations thereunder.
11.17 COMPLIANCE WITH HIPAA PRIVACY STANDARDS
(a) If the Health Flexible Spending Account under this Cafeteria Plan
is subject to the Standards for Privacy of Individually Identifiable Health
Information (45 CFR Part 164, the "Privacy Standards"), then this Section shall
apply.
(b) The Plan shall not disclose Protected Health Information to any
member of the Employer's workforce unless each of the conditions set out in this
Section are met. "Protected Health Information" shall have the same definition as
set forth in the Privacy Standards but generally shall mean individually
identifiable information about the past, present or future physical or mental health
or condition of an individual, including information about treatment or payment
for treatment.
(c) Protected Health Information disclosed to members of the
Employer's workforce shall be used or disclosed by them only for purposes of
Plan administrative functions. The Plan's administrative functions shall include all
Plan payment functions and health care operations. The terms "payment" and
"health care operations" shall have the same definitions as set out in the Privacy
Standards, but the term "payment" generally shall mean activities taken to
determine or fulfill Plan responsibilities with respect to eligibility, coverage,
provision of benefits, or reimbursement for health care.
(d) The Plan shall disclose Protected Health Information only to
members of the Employer's workforce who are authorized to receive such
Protected Health Information, and only to the extent and in the minimum amount
necessary for that person to perform his or her duties with respect to the Plan.
"Members of the Employer's workforce" shall refer to all employees and other
persons under the control of the Employer. The Employer shall keep an updated
list of those authorized to receive Protected Health Information.
(1) An authorized member of the Employer's workforce who receives
Protected Health Information shall use or disclose the Protected Health
Information only to the extent necessary to perform his or her duties with
respect to the Plan.
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(2) In the event that any member of the Employer's workforce uses or
discloses Protected Health Information other than as permitted by this
Section and the Privacy Standards, the incident shall be reported to the
Plan's privacy officer. The privacy officer shall take appropriate action,
including:
(i) investigation of the incident to determine whether the
breach occurred inadvertently, through negligence or deliberately;
whether there is a pattern of breaches; and the degree of harm
caused by the breach;
(ii) appropriate sanctions against the persons causing the
breach which, depending upon the nature of the breach, are
consistent with the Employer's disciplinary procedures;
(iii) mitigation of any harm caused by the breach, to the
extent practicable; and
(iv) documentation of the incident and all actions taken to
resolve the issue and mitigate any damages.
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(e) The Employer must provide certification to the Plan that it agrees
(1) Not use or further disclose the information other than as permitted
or required by the Plan documents or as required by law;
(2) Ensure that any agent or subcontractor, to whom it provides
Protected Health information received from the Plan, agrees to the same
restrictions and conditions that apply to the Employer with respect to such
information;
(3) Not use or disclose Protected Health Information for employment-
related actions and decisions or in connection with any other benefit or
employee benefit plan of the Employer;
(4) Report to the Plan any use or disclosure of the Protected Health
Information of which it becomes aware that is inconsistent with the uses or
disclosures permitted by this Section, or required by law;
(5) Make available Protected Health Information to individual Plan
members in accordance with Section 164.524 of the Privacy Standards;
(6) Make available Protected Health Information for amendment by
individual Plan members and incorporate any amendments to Protected
Health Information in accordance with Section 164.526 of the Privacy
Standards;
26
(7) Make available the Protected Health Information required to
provide an accounting of disclosures to individual Plan members in
accordance with Section 164.528 of the Privacy Standards;
(8) Make its internal practices, books and records relating to the use
and disclosure of Protected Health Information received from the Plan
available to the Department of Health and Human Services for purposes of
determining compliance by the Plan with the Privacy Standards;
(9) If feasible, return or destroy all Protected Health Information
received from the Plan that the Employer still maintains in any form, and
retain no copies of such information when no longer needed for the
purpose for which disclosure was made, except that, if such return or
destruction is not feasible, limit further uses and disclosures to those
purposes that make the return or destruction of the information infeasible;
and
(10) Ensure the adequate separation between the Plan and members of
the Employer's workforce, as required by Section 164.504(f)(2)(iii) of the
Privacy Standards and set out in (d) above.
11.18 COMPLIANCE WITH HIPAA ELECTRONIC SECURITY STANDARDS
Under the Security Standards for the Protection of Electronic Protected Health
Information (45 CFR Part 164.300 et. seq., the "Security Standards"):
(a) The Employer agrees to implement reasonable and appropriate
administrative, physical and technical safeguards to protect the confidentiality,
integrity and availability of Electronic Protected Health Information that the
Employer creates, maintains or transmits on behalf of the Plan. "Electronic
Protected Health Information" shall have the same definition as set out in the
Security Standards, but generally shall mean Protected Health Information that is
transmitted by or maintained in electronic media.
(b) The Employer shall ensure that any agent or subcontractor to
whom it provides Electronic Protected Health Information shall agree, in writing,
to implement reasonable and appropriate security measures to protect the
Electronic Protected Health Information.
(c) The Employer shall ensure that reasonable and appropriate security
measures are implemented to comply with the conditions and requirements set
forth in Section 11.17.
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IN WITNESS WHEREOF, this Plan document is hereby executed this
day of , 2008.
13.3 Default. In the event of default, the Trustee, at the direction of the Plan
Administrator, may proceed to collect said loan with any legal remedy available,
including reducing the amount of any distribution permitted under Article VIII by the
amount of any such loan that may be due and owing as of the date of distribution or
any other action that may be permitted by law. "Events of Default" shall include any
failure to make a payment of principal or interest attributable to the loan when due;
failure to perform or to comply with any obligations imposed by any agreement
executed by the Borrower securing his loan obligation; and any other conditions or
requirements set forth within a promissory note or security agreement that may be
required in order to ensure that the terms of the loan are consistent with Commercially
reasonable practices.
IN WITNESS WHEREOF, this Plan has been executed this day of
, 2008.
Frank V. Hibbard
Mayor
Approved as to form:
Leslie K. Dougall-Sides
Assistant City Attorney
Attest:
Cynthia E. Goudeau
City Clerk
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