Section 3: Annual report or other reports by trustees or plan administrators; exemptions; information required; form; filing; time; powers of board; conflicts of interest; restrictions; violations; penalties; proceedings; service of process on nonresidents
Section 3. (a) The trustees or plan administrator required to register under section two shall file an annual report with the board within five months after the end of the calendar year, or if the records of the trust or fund are kept on a policy or fiscal year basis then within five months after the end of such policy or fiscal year. Said report shall be in writing upon a form prescribed by the board. It shall be signed and certified under oath as prescribed by the board. It shall contain the following information for the preceding calendar, policy or fiscal year: the value of the trust or fund as of the end of the fiscal year; the amount contributed by the employer or employers, the amount contributed by the employees; the amount of benefits paid for each class of benefits; the number of employees covered; the salaries and fees paid by or charged to the trust or fund, to whom paid, in what amount, and for what purposes. If some or all of the benefits under the trust or fund are provided by an insurance carrier or by a hospital, surgical or medical service or any other similar type of plan, such report shall also include for each such year, with respect to such and for each class of benefits, the following information: the premium rate or subscription charge and the total premium or subscription charges paid to each such insurance carrier or service plan; the number of persons covered by each class of benefits; the total claims incurred and the total claims paid by such insurance carrier or service plan; dividend, commissions and administrative, services or other fees paid by such insurance carrier or service plan; retentions by such insurance carrier or service plan; the names and addresses of the brokers, agents or other persons to whom commissions or fees were paid, the amounts paid to each, and the services rendered for said commissions or fees. Such insurance carrier or service plan shall certify to the trustees or plan administrators of such trust or fund within four months after the end of each policy year, the information necessary to enable such trustees or plan administrators to comply with the requirements of this paragraph. Any insurance carrier or service plan failing to furnish such information within the time specified shall be penalized five dollars for each day during which such failure continues. The board may also request in writing such supplemental information as is necessary to clarify and explain any such annual reports.
Any trustee or plan administrator neglecting to file its annual report in the form and within the time specified may be required to forfeit five dollars for each day during which such neglect continues. The time for filing any such report may be extended by the board.
Within one year after the date the plan is established and annually thereafter, as part of the annual report, the trustee or plan administrator shall submit a report by a qualified actuary stating, but not limited to:
1. The estimated cost of statutory vested benefits in respect of service for which such plan is required to register and the formula for computing such cost in subsequent years up to date for the following report.
2. The contributions made to fund the statutory vested benefit for the period covered since the last report.
3. A report of the review required by section three.
In lieu of the above reporting provisions, plans with fewer than twenty-six participants shall submit such other reports as the board may require. Pension plans or profit-sharing retirement plans funded solely by the direct purchase of an insurance contract or group annuity contract or that portion of combination plans funded by the direct purchase of an insurance contract or group annuity contract shall not be required to file the annual report as herein required by this subsection. In lieu thereof, upon receiving notice from the plan trustee, plan administrator or employer of the termination of a plan herein exempted, the insurance carrier shall notify the board sixty days prior to final termination of said plan for any reason as defined by the rules and regulations of the internal revenue service.
(b) The board may examine the books and records and investigate the administration of any trust, pension plan or profit-sharing retirement plan, and the board may require the attendance and testimony of witnesses. Such witnesses shall be duly sworn and shall give their testimony under the penalties of perjury. The board may conduct examinations at such places and take deposition within or without the commonwealth.
(c) No trustee or plan administrator or employer, or labor organization representing any employees eligible for benefits under a trust or fund required to register under this chapter, and no officer, agent or employee of any such trustee or plan administrator, employer or labor organization shall receive directly or indirectly any payment, commission, loan, service, or any other thing of value from any insurance company, insurance agent, insurance broker or any hospital, surgical or medical service plan, in connection with the solicitation, sale, service or administration of a contract providing benefits for such trust or fund, or receive any payment, commission, loan or any other thing of value from such trust or fund, or which is charged against such trust or fund would otherwise be payable to such trust or fund either directly or indirectly, except that any such person may receive any benefits under a trust or fund to which he is otherwise entitled, and any trustee or plan administrator, employer or labor organization, or his or its officer, agent or employee, may receive from such trust or fund reasonable compensation for necessary services and expenses rendered or incurred by him or in connection with the official duties of such trust or fund; provided, however, that nothing in this paragraph shall affect the payment of any dividend or rate credit or any other adjustment due under the terms of any insurance or annuity contract to the policy holder or contract holder.
Nothing contained in this subsection shall be construed as prohibiting the purchase by the trustees at fair market value of any securities which are proper investments for trustees, nor the sale of such securities at such value.
No insurance company, insurance agent or insurance broker and no hospital, surgical or medical service plan, shall either directly or indirectly, pay any commission, make any loan or give any other payment or thing of value to any employee welfare fund or to any employer or labor organization representing any employees eligible for employee benefits thereunder or to any trustee or other officer or employee of any such fund, employer or labor organization, in connection with the solicitation, sale, service or administration of a contract providing employee benefits for such fund.
(d) Any trustee or plan administration subject to the provisions of this chapter, who has a principal place of business located outside the commonwealth shall appoint an agent in the commonwealth for the service of process upon such trustee or plan administrator in his capacity as trustee or plan administrator and register the name and address of such agent with the board. Any such trustee or plan administrator who fails to appoint an agent in the commonwealth shall be deemed and held, in relation to any cause of action or proceeding against him as trustee or plan administrator to have appointed the commissioner of corporations and his successor in office to be his true and lawful attorney and any process in any such action or proceeding against such trustee or plan administrator served upon the commissioner or his successor in office shall be of the same legal force and validity as if served on such trustee or plan administrator personally. When legal process against such trustee or plan administrator is served upon the commissioner, he shall immediately give notice to the trustee or plan administrator of such service by registered mail, postage prepaid, return receipt requested, directed to the trustee or plan administrator and shall, within two days after such service forward in the same manner, a copy of the process served upon him to such trustee or plan administrator.
A fee to be determined annually by the commissioner of administration under the provision of section three B of chapter seven shall be paid by the plaintiff to the commissioner at the time of the service and shall be taxed in his costs if he prevails in the suit. The commissioner shall keep a record of all such processes, which shall show the day and hour of service. In the case of service of process on a trustee or plan administrator who has not appointed an agent for the service of process, the notice herein provided for shall be mailed by the commissioner to the proper address of the trustee or plan administrator which shall be furnished to him by the plaintiff or his attorney.
(e) If, after notice and a hearing, the board finds that any trust or fund has been depleted by reason of any wrongful or negligent act or omission of a trustee, plan administrator or of any other person, or that any trustee, plan administrator or other person unreasonably fails or refuses to pay or award any benefit to which an employee or beneficiary is entitled, it may bring an action or intervene in an action brought by or on the behalf of an employee, beneficiary or an employer against such trustee, plan administrator or other person who fails or refuses to pay said benefits, or whose act of omission has caused such depletion, for the recovery of such monies, securities, property or thing of value for the benefit of the beneficiaries.
(f) A summary of the report in such form as shall be approved by the board setting forth the information required to be filed under subsection (a) shall be filed annually with the board at the same time as the filing of said report. It shall be kept available for public inspection at the office of the board. The board may, if it deems it necessary for the accomplishment of the purposes of this act in the case of any particular trust, direct the trustees to distribute or appropriately publish copies of such summary to all employees and labor organizations participating in the trust or fund. Except as provided in this subsection, all reports and other information in the possession of the board shall be confidential communications, shall not be subject to subpoena and shall not be made public unless the ends of justice and the public advantage will be subserved by the publication thereof in the case of any particular trust or fund; in which event the board shall publish a copy of such report or other information or any part thereof in such manner as the board may deem proper. Any amendments, modifications or alterations of any kind to plans registered with the board shall be reported on forms acceptable to said board and certified copies of the same shall be filed with said board within thirty days after their effective date.
The employer shall furnish within sixty days after the registration of the plan to each participant in the plan and to each employee upon his enrollment in the plan and within sixty days after each major amendment to the plan a summary of the plan's important provisions or requirements of the amendment, whichever is applicable, written in the manner calculated to be understood by the average employee of such employer. The summary shall include a description of the benefits available to the participant under the plan and circumstances which may result in disqualification or ineligibility, the employer shall furnish to every employee the plan's vesting provisions, the procedure for claiming benefits, the procedure for appealing denial of benefits, and what effect, if any, a company merger or termination of the plan will have on those participants, as well as disability and survivorship benefits, and the procedure for claiming them. The employer shall furnish to every employee every three years a revised up-to-date summary if a plan has been amended within three years of the furnishing of the last revised summary of such plan. The employer shall furnish to each plan beneficiary so requesting in writing a completed and up-dated copy of the plan, or a complete copy of the latest annual report, or both.