COLUMN: Workers fight switch to church pension plans

Wed Jan 25, 2012 2:11pm EST

Golden angels attached at scaffolding are pictured during an exhibition in the Holy Cross church in Munich December 17, 2009. REUTERS/Michaela Rehle

Golden angels attached at scaffolding are pictured during an exhibition in the Holy Cross church in Munich December 17, 2009.

Credit: Reuters/Michaela Rehle

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(Reuters) - Mary Rich worked for a hospital in northern New Jersey for 25 years, first as a registered nurse and later as an executive. One of the job's benefits was a traditional pension that she expected to receive at retirement.

Now that benefit seems unlikely to be around by the time she retires.

Rich's financially troubled former employer, the Hospital Center at Orange (HCO), shut down in 2004. The pension plan currently has $5.25 million in assets, which are being distributed at the rate of $2.7 million per year. By the time Rich reaches retirement 12 years from now, the money will be gone.

Under normal conditions, a pension plan such as HCO's would have been back-stopped by the Pension Benefit Guarantee Corporation, the federally sponsored agency that insures most private sector pension plans. When plans go belly up, PBGC takes them over and continues to make payments; most participants receive 100 percent of promised benefits.

But HCO's case wasn't typical. A year before it closed, HCO had declared itself to be a "church plan" - meaning that it was claiming an exemption to federal pension law and PBGC coverage.

The Employee Retirement Income Security Act, known as ERISA, regulates most private-sector pensions. But it has always exempted plans operated directly by churches for their clergy and employees to make it easier for the churches to operate their plans.

A 1980 amendment to ERISA clarified that the exemption also applied to church pension boards, which administer group pension plans for church employees. But since then, a growing number of plan sponsors with less-direct ties to religious organizations have been declaring themselves church plans and asking the Internal Revenue Service to issue private-letter rulings confirming the exemptions, which free the plans from federal funding requirements.

They can stop paying PBGC insurance premiums and can even receive a refund of up to six years of insurance premiums - probably a total of about $200,000 in HCO's case.

While that may have been a lot of money for a struggling hospital to recoup, it's a disaster for workers relying on the pension plan, and it's especially egregious considering that the cost of lifetime protection from PBGC is just $35 per year per plan participant.

From 1997 to 2007, 85 pension plans received refunds from PBGC as a result of church plan rulings affecting thousands of workers, according to the Pension Rights Center, a non-profit advocacy group, which received the data from PBGC via a Freedom of Information Act request. The PRC says most of the employers were hospitals, but exemptions were also granted to universities, health clinics and Catholic and Jewish charities.

The HCO church plan claim was based on its 1998 affiliation with Cathedral Healthcare System, a Catholic hospital system controlled by the Archdiocese of Newark. But HCO had been a freestanding non-profit hospital from its founding in 1873 up until the affiliation. The deal wasn't an outright merger or sale, but Cathedral nonetheless used the affiliation to file for church plan status.

"The key problem is that the IRS is using a standard that allows these affiliate organizations to become church plans when there is no economic substance to their relationship with churches," said James Keightley, a partner at the law firm Keightley & Ashner LLP and a former PBGC general counsel. "Maybe they have a board affiliation and put up signs and symbols on the walls."

In 2004, HCO plan participants sued the hospital, the Archdiocese, the PBGC and the IRS. The lawsuit was dismissed the following year and a settlement was reached because no pension recipients had yet been harmed, and because the IRS stated that it would reconsider the matter.

But the IRS didn't take action until last fall, when it made a tacit admission that it was wrong in the HCO case. In the future, the IRS said, church status would be granted only to pension plans that were first established as church plans and maintained as such continuously.

"We argue that the way they're interpreting the amendments has been wrong for over 30 years," said Eric Loi, an attorney at the Pension Rights Center non-profit consumer watchdog group.

At the same time, the IRS issued new rules requiring plans to notify participants of their intent to convert to church plan status and allowing participants to file comments with the IRS.

This week, the comment period will close on another closely watched church plan situation in New Jersey, St. Peter's Healthcare System, a New Brunswick, New Jersey, hospital that is part of the Diocese of Metuchen, New Jersey.

St. Peter's applied to the IRS for a church-plan ruling in 2006. Its plan covers over 3,000 current and retired workers. The pension plan was frozen in 2010, with new employees enrolled in a defined contribution retirement plan.

St. Peter's spokesman Phil Hartman notes that the hospital was created by an order of nuns and that it has considered itself to have offered a church plan since 2007. But he added that St. Peter's has operated to this point in compliance with ERISA, has made all the required PBGC insurance contributions ($2 million since 2006) and intends to continue doing so even if it receives a church plan private letter ruling from the IRS.

"The main incentive for us was to get more flexibility in the timing and method of funding the pension plan," said Hartman.

The IRS told Reuters in statement that "based on the changes made by, the Service believes that plans of organizations associated with a church or convention or association of churches, may in appropriate cases be church plans."

PBGC and the Archdiocese of Newark declined to comment.

PRC hopes that the new notification requirements will prompt plan sponsors who had been seeking private letter rulings to drop their plans.

Meanwhile, Mary Rich and other plan beneficiaries have been engaged in a nine-year battle to restore PBGC protection to their plan, and the latest temporary legal settlement expires at the end of this year.

"We don't want to litigate - we just want an answer," she said. "The plan will be out of money in two years, and the indecision by the IRS has cost us years.

"We're the poster child for the most egregious case out there," said Rich. "If I never collect a dime, I will carry this torch until we prevail."

(Editing by Beth Pinsker Gladstone and Dan Grebler)

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