ER wants to make 5% of pay contribution to ERISA 403b plan for all eligible EEs.

ER also provides group health coverage to EEs per stricter eligibility requirements and do not have other group health coverage (such as through spouse).

ER would like to provide another 10% of pay contribution to ERISA 403b plan for those NHCEs that are eligible for the ER's group health coverage but for the fact they are covered under other group health coverage.

No EE would have a choice of extra pay (or any other taxable benefit) in lieu of the 5% or 10% contributions.

Problems?