ERISA Benefits Law Desk ReferenceERISA Benefits Tech, LLC

Part 20 · Chapter 1

Governmental Plans

Law stated as of October 3, 2026 · Governmental, Church, and Tribal Plans

Scope and status

Governmental plans are defined by a Code section that has never been the subject of a final regulation, are exempt from most of what the rest of the Desk Reference analyzes, and are governed substantially by State law. The two questions that decide most engagements are status (Part A) and Social Security coverage (Part D) — the second is the most commonly missed. Tribal plans are an overlay on this chapter — read Part A here, then this Part's Indian Tribal Government Plans. Related questions are treated elsewhere: 403(b) substance in Part 8 (403(b) Plans); QDRO-equivalents in Part 12 (QDROs and Division of Retirement Benefits); and welfare-plan rules in Part 13 (COBRA, HIPAA, and Welfare Benefits) and Part 15 (Health Plan Parity, CAA, and Transparency).

Sections

Part A is shown in full. The other sections are listed by title; their text is available to subscribers.

Part A — Status Under §414(d)

A1.The definition and the regulatory vacuum

Part 20, ch. 1, § A1

A governmental plan is one established and maintained (Code §414(d)) — or, for ERISA Title I, established or maintained (ERISA §3(32)) — for its employees by the United States, a State, a political subdivision, or an agency or instrumentality of any of them. Statute: Code §414(d); ERISA §3(32). The two tests can diverge, so run the Code test for tax status and the ERISA test for Title I; the tribal clause uses "and" in both. There is no final regulation defining the term. Treasury published an advance notice describing rules it was considering on November 8, 2011; it was never finalized. ANPRM — no reliance: 76 Fed. Reg. 69172 (Nov. 8, 2011), "Determination of Governmental Plan Status."

A2."Agency or instrumentality" — the factors

Part 20, ch. 1, § A2

Status turns on the degree of governmental control and financial responsibility: who created the entity and under what authority; who appoints and can remove its governing body; whether its employees are treated as public employees (including for civil service, retirement, and tort-claims purposes); whether the government is financially responsible for its obligations; whether it performs a governmental function; and whether its assets revert to the government on dissolution. Rev. Rul. 57-128; ANPRM factors — no reliance; case law applying the factors. IRS Notice: Notice 2015-07; Rev. Rul.: Rev. Rul. 89-49.

A3.What follows from status

Part 20, ch. 1, § A3

A governmental plan is exempt from ERISA Title I and Title IV entirely — no fiduciary rules, no reporting and disclosure, no Form 5500, no PBGC coverage or premiums. Statute: ERISA §4(b)(1) (Title I); ERISA §4021(b)(2) (Title IV). It remains a Code creature and must satisfy the qualification requirements that were not waived.

Part B — Which Code Rules Apply

  1. B1The exemptionsSubscribers
  2. B2What still appliesSubscribers
  3. B3The §401(k) prohibition and its grandfatherSubscribers
  4. B4QDROs in a governmental planSubscribers

Part C — §457(b) Eligible Deferred Compensation

  1. C1The governmental §457(b) planSubscribers
  2. C2Coordination and limitsSubscribers

Part D — Social Security and Medicare Coverage (the most-missed issue)

  1. D1The §218 agreementSubscribers
  2. D2The mandatory-coverage rule and the "retirement system" exceptionSubscribers
  3. D3Medicare-only coverageSubscribers

Part E — Distributions and Retiree Provisions

  1. E1Public safety officer provisionsSubscribers
  2. E2DROP arrangementsSubscribers

Part F — State Law and Non-ERISA Governance

  1. F1State law supplies what ERISA does notSubscribers
  2. F2Accounting and funding disclosureSubscribers
  3. F3Welfare plans of governmental employersSubscribers

The first Part of each chapter is open to everyone. The remaining sections, with their authority and practice points, are available to subscribers and to clients of ERISA Benefits Law Group, PLLC whose engagement includes access.

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