Is an Adoption Assistance Plan that stands alone (is not part of any other welfare or cafeteria-type plan) an employee welfare benefit plan under ERISA? I've looked high and low and it seems some people treat them as ERISA plans, while others do not. Thanks!

A stand-alone Adoption Assistance Plan should not be an ERISA plan. Doesn't meet the definitions as to type of benefits, set forth in section 3(1) of ERISA, for a welfare benefits plan.

Per Simmons statement, adoption assistance is not one of the benefits listed in the ERISA plan definition.

"The terms “employee welfare benefit plan” and “welfare plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 302© of the Labor Management Relations Act, 1947 [ 29 USC §186© ] (other than pensions on retirement or death, and insurance to provide such pensions)."

Seems like an adoption assistance program is a program est by an e/r to provide participants with a benefit described in the LMRA - that provision seems to include anything of value.

Is there a specific exemption from ERISA for DCAP FSAs? If so, then I'd think an adop ass program would be subj to ERISA unless a similar exemption applied.

There is a list of benefits, and adoption assistance is not one of them (as well as DCAP).