Q.- We are a non-profit school. Is our Health Plan subject to ERISA and do we have to file a Form 5500 for the plan?
A.- It depends. In general, health plans of non-profit organizations are not excepted from ERISA, unless they are a church or governmental plan. Church and governmental plans are excepted from certain provisions of ERISA, including the Form 5500 filing requirements.
A governmental plan is a plan established or maintained for employees of the government of the United States, by a state government, or by an agency or instrumentality of the government. Whether a plan is a governmental plan depends on the extent to which a governmental entity funds and administers the plan. It is well established that a public school district constitutes a governmental agency for purposes of ERISA. Private schools, including non-profit schools, are generally not governmental agencies. However, if the school is a state-sponsored and directed charter school that is part of a public school system, it might be sufficiently government-directed to be considered to sponsor a government plan for ERISA purposes.
If the school is run by a church, it is possible that the plan could be structured as a church plan which is excepted from ERISA. This would depend on the relationship with the church and the structure of the plan.
The structure of the organization and plan will have to be closely reviewed to determine if any exemption from ERISA and the Form 5500 filing requirement can be claimed.
