6. Section 2590.732 is amended by adding paragraphs (a)(2) and (e) to read as follows:
(a) Group health plan. * * *
(2) Determination of number of plans. The number of group health plans that an employer or employee organization (including for this purpose a joint board of trustees of a multiemployer trust affiliated with one or more multiemployer plans) maintains is determined under the rules of this paragraph (a)(2).
(i) Except as provided in paragraph (a)(2)(ii) or (iii) of this section, medical care benefits provided by a corporation, partnership, or other entity or trade or business, or by an employee organization, constitute one group health plan, unless—
(A) It is clear from the instruments governing the arrangement or arrangements to provide medical care benefits that the benefits are being provided under separate plans; and
(B) The arrangement or arrangements are operated pursuant to such instruments as separate plans.
(ii) A multiemployer plan and a nonmultiemployer plan are always separate plans.
(iii) If a principal purpose of establishing separate plans is to evade any requirement of law, then the separate plans will be considered a single plan to the extent necessary to prevent the evasion.
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(e) Determining the average number of employees —(1) Scope. Whenever the application of a rule in this part depends upon the average number of employees employed by an employer, the determination of that number is made in accordance with the rules of this paragraph (e).
(2) Full-time equivalents. The average number of employees is determined by calculating the average number of full-time equivalents on business days during the preceding calendar year.
(3) Methodology. For the preceding calendar year, the average number of full-time equivalents is determined by—
(i) Determining the number of employees who were employed full-time by the employer throughout the entire calendar year;
(ii) Totaling all employment hours (not to exceed 40 hours per week) for each part-time employee, and for each full-time employee who was not employed full-time with the employer throughout the entire calendar year;
(iii) Dividing the total determined under paragraph (e)(3)(ii) of this section by a figure that represents the annual full-time hours under the employer's general employment practices, such as 2,080 hours (although for this purpose not more than 40 hours per week may be used); and
(iv) Adding the quotient determined under paragraph (e)(3)(iii) of this section to the number determined under paragraph (e)(3)(i).
(4) Rounding. For purposes of paragraph (e)(3)(iv) of this section, all fractions are disregarded. For instance, a figure of 50.9 is deemed to be 50.
(5) Employers not in existence in the preceding year. In the case of an employer that was in existence for less than the entire preceding calendar year (including an employer that was not in existence at all), a determination of the average number of employees that the employer employs is based on the average number of employees that it is reasonably expected the employer will employ on business days in the current calendar year.
(6) Scope of the term “employer”. For purposes of this paragraph (e), employer includes any predecessor of the employer. In addition, all persons treated as a single employer under section 414(b), (c), (m), or (o) of the Internal Revenue Code are treated as one employer.
(7) Special rule for multiemployer plans. (i) With respect to the application of a rule in this part to a multiemployer plan (as defined in section 3(37) of the Act), each employer with at least one employee participating in the plan is considered to employ the same average number of employees. That number is the highest number that results by applying the rules of paragraphs (e)(1) through (6) of this section separately to each of the employers.
(ii) The rules of this paragraph (e)(7) are illustrated by the following example:
Example.
(i) Facts. Twenty five employers have at least one employee who participates in Multiemployer Plan M. Among these 25 employers, Employer K has 51 employees, determined under the rules of paragraphs (e)(1) through (6) of this section. Each of the other 24 employers has fewer than 50 employees.
(ii) Conclusion. With respect to the application of a rule in this part to M , each of the 25 employers is considered to employ 51 employees.