ERISA Compliance
& Surviving DOL Audit
TASC Confidentiality
• This Seminar and all materials presented are the property of TASC. No
part of this seminar or any of the materials provided may be reproduced
or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording, or otherwise, without prior written permission
from TASC. To the extent allowed by law, TASC intends to recoup any value
lost by an unauthorized use or disclosure including the TASC profits that
may have been lost or the profits made by the disclosing party.
• IRS Circular 230 disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that if any advice concerning one or
more U.S. Federal tax issues is contained in this seminar material or is
provided by a speaker at the seminar, such advice is not intended or
written to be used, and cannot be used, for the purpose of (i) avoiding
penalties under the Internal Revenue Code; or (ii) promoting, marketing,
or recommending to another party any transaction or matter addressed
herein, and you should seek advice based on your particular
circumstances from an independent tax advisor.
TASC
• National TPA for Employee Benefits
• Established in 1975
• Serving Mid-Large Market
– Fortune 500
– Private and Public
– State, county, and city government
• Headquarters in Madison, WI
• Over 700 Employees Nationwide
700 Employees
National Presence
60 Offices
45 Regional Sales
Directors
(150 by 2016)
10,000
Broker/Distributors
55,700 Clients
750,000+
Participants
ERISAEdge Experience
Carolyn McNairy- Sales Development Director of Compliance Services
•Carolyn is Sales Development Director of Compliance Services) for Total Administrative Services Corporation (TASC) where
she also served as the Product Administrator for ERISAEdge.
•Her role also includes conducting National Seminars and Webinars to educate the TASC Group Sales Force,
•Employee Benefit Consultants, General Agents, Insurance Carrier Sales Staff and Providers and clients on
ERISA/FMLA/COBRA/FSA legal requirements. She has conducted over 2000 National Seminars and conducts monthly Provider
and client Webinars.
•Carolyn has been in the employee benefit and administration business since 1978. She is the President and founder of C&J
Consulting & Administration, Inc., a company specializing in compliance issues and
administration of ERISA. She agency was purchased by TASC in February of 2008.
Rick Jones-Esq. Staff Attorney
●
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●
●
Rick Jones was the Vice President of COBRA Services and the Staff Attorney at HFS Benefits for 10 years.
HFS was purchased by TASC on July 1, 2011. Rick is currently the Staff Attorney for Total Administrative
Services Corporation (“TASC”). HFS Benefits and TASC provide Section 125 (Cafeteria Plan), HRA, HSA,
Transportation and COBRA Administration services to employers nationwide, including discrimination testing
and 5500 filings.
In his current role, Mr. Jones advises TASC on product compliance, contractual issues with clients, and any
compliance issues that arise.
Rick has been in Employee Benefits business since 1989.
Jeb Hennessey- Vice President – Compliance
●
Jeb manages a staff responsible for the generation and delivery of ERISA welfare benefit wrap plan
documents/Summary Plan Descriptions, welfare Form 5500 returns (including DFVCP filings), Summary Annual
Reports., Cafeteria and welfare benefit plan nondiscrimination testing including the testing of cafeteria plans,
Flexible Spending Accounts, Health Reimbursement Arrangements, self-insured medical plans and group term
life insurance plans.
● HFS was purchased by TASC on July 1, 2011. Jeb was with HFS from 2003 to until purchase.
● Jeb has been in Employee Benefits Administration since 1992.
What’s the origin of ERISA?
• Location: Studebaker Corporation
in South Bend, Indiana.
• Date: December 23, 1963
• Event: The company has announced
the plant is closing….
Sources:
DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442, 454 (3d Cir., 2003)
"The Most Glorious Story of Failure in the Business: The Studebaker-Packard Corporation and the Origins of
ERISA" by James A. Wooten
What’s the origin of ERISA?
… what happened next wasn’t so pretty
• 5,000 workers dismissed
• Pension plan terminated that covered 11,000 members of United Automobile
Workers
• Underfunded plan: not enough funds to cover vested benefits
• Of the 11,000 workers:
 4,100 reaching age 60 received a full pension
 4,000 (59.5 years old, 43 years of service) received 15%
 2,900 received nothing at all
 Some with 40+ years of service missed full pension (age 60) by a few
months
And, just days before December holidays, 3,000 laid off with no pension
Source:
"The Most Glorious Story of Failure in the Business: The StudebakerPackard Corporation and the Origins of ERISA" by James A. Wooten
ERISA: Employee Retirement
Income Security Act
• ERISA is governed by the U.S Department of Labor and
enforced by the Employee Benefits Security
Administration (EBSA).
• The EBSA’s primary responsibility is to ensure the
integrity and compliance of the private employee
benefits plan system in the United States.
• EBSA Mission Statement
– The mission of the Employee Benefits Security
Administration is to assure the security of the
retirement, health and other workplace related
benefits of America's workers and their families. We
will accomplish this mission by developing effective
regulations; assisting and educating workers, Plan
Sponsors, fiduciaries and service providers; and
vigorously enforcing the law.
http://www.dol.gov/ebsa/
erisa_enforcement.html
Why are so many Employers out of
Compliance?
•
•
•
•
Overall Lack of Awareness in Marketplace
Carrier Documents thought to be Compliant
Confusion due to a Complexity of the Regulations
Prior Limited Enforcement
• However, Compliance is “Not An Option”…It’s
the Law!
– Statistics are that 90-95% of Employers have at
least one violation of ERISA regulations.
ERISA Defined
• Employee Retirement Income Security Act
(ERISA)
– Federal Law Enacted in 1974
– Title 1 is part of U.S. labor laws; governs the structure
of employee benefits plans.
• Requires detailed disclosure to covered individuals. (Applies
to all Private Sector Employers regardless of size)
• Requires detailed reporting to the government. )(Plans with
100+ participants)
• Imposes strict fiduciary code of conduct on those who
sponsor and administer ERISA Plans.
• Imposes federal mechanism for enforcing rights and duties
with respect to ERISA Plans and preempts a large body of
state laws.
ERISA Defined (cont’d.)
• DOL (Department of Labor)
– Failure to comply with ERISA’s requirements can be
quite costly
• Through DOL enforcement actions
– Government Penalties for Non-Compliance
» Case Law:
1) $86,500 – Failure to File Complete and Accurate Form 5500
Airport Hospitality, LTD, King of Prussia, Penn., 2010
2) $241,000 – Failure to Provide SPD to Participant
Gorini v. AMP Inc., 117 Fed. Appex, 193 (3d Cir. 2004)
3) $10,780 - Failure to Provide SPD to Participant
Kasireddy v. Bank of America Corp. Benefits Committee,
2010 WL 4168512 (N.D. Ill. Oct. 13, 2010)
4) $13,750 - Failure to Provide SPD to Participant
Latimer v. Wash. Gas Light Co., 2012 WL 2119254 (E.D. Va. 2012)
ERISA Titles
• “Title 1” Applies to H&W benefits
• 7 Parts (5 parts apply to H&W benefits)
–
–
–
–
Part 1: Reporting & Disclosure
Part 4: Fiduciary responsibility
Part 5: Administration & Enforcement
Part 6: COBRA and additional standards for group
health plans
– Part 7: HIPAA, Newborn & Mothers Health Protection,
Mental Health Parity Act, Womens’ Health and Cancer
Rights Act (WHCRA)
What are the elements of an ERISA plan?
Five elements of a “plan:”
• plan/fund or program
• established or maintained
• by an employer or employee organization or both
• for the purpose of providing welfare or retirement
benefits
• to participants and beneficiaries
Source:
ERISA Section 3(1).
See also 29 C.F.R. Sections 2510.3-1, 2510.3-1(a)(2))
Welfare Benefit Plan
• Examples:
–
–
–
–
–
–
–
–
–
Health, Dental and/or Vision Insurance or plans
Health Flexible Spending Accounts (FSAs)
Health Reimbursement Arrangements (HRAs)
Accidental Death & Dismemberment Insurance
Group Term Life Insurance
Short- and Long-Term Disability
Severance Insurance
Wellness and Employee Assistance Programs
Voluntary Benefits offered as pre-tax benefits under any Section
Sources:
● ERISA Section 3
● 29 C.F.R. Section 2510.3-1
Voluntary Insurance
The DOL regulations state that insurance benefit programs offered
by an insurer on a voluntary basis (100% employee paid) will not be
deemed established or maintained by an employer, if the following
four tests are met:
(1) the employer makes no contributions,
(2) participation is completely voluntary,
(3) the sole function of the employer is, without endorsing the plan, permitting the
insurer to publicize the program and collecting premiums through payroll
deductions, and
(4) the employer receives no commissions other than reasonable compensation for
administrative services.
Most voluntary programs can easily satisfy requirements # 1, 2, and
4. It is less clear what employer activities under #3 will cause a
plan to fall outside the safe harbor and, thus, be subject to ERISA.
Source:
● 29 C.F.R. Section 2510.3-1(j)
Voluntary Insurance: Factors that impact the likelihood that an employer is
endorsing an ERISA plan
 Pays premiums or reimburses employees for paid premium; or
 Offers a benefits program under a flexible benefit or cafeteria plan.
likely
 Chooses insurers;
 Endorses the plan and permits the employer’s logo to be used by the insurer;
 Suggests or negotiates policy design, terms and rates; or
 Runs enrollment meetings.
 Reviews and approves literature distributed to its employees;
 Limits the number of insurers or products for administrative purposes;
 Prepares claim forms for employees;
 Allows its name to be used on insurer’s marketing materials;
 Answers employee questions about policy;
 Permits enrollment meetings during business hours; or
 Distributes certificates, enrollment forms and waiver cards.
 Permits employees to receive a group discount on individual policies;
 Permits employees to receive group rates on group policies;
 Serves as policyholder;
 Permits the insurer to advertise its policy and distribute information about the policy to employees;
or
 Deducts and remits employee premiums at its employees’ direction.
unlikely
Employers Subject to ERISA
• Private-Sector Employers
–
–
–
–
Corporations
Partnerships
Sole Proprietorships
Non-Profit Organizations
• Unless Exempt under 501a as Governmental entity
– (listing the following nine factors applied by the courts and the DOL
in determining whether the governmental plan exception applies:
whether (a) the state or local government exercised control over the
plan; (b) the plan provides for only employer or employee
contributions or for both; (c) government employees acted as
fiduciaries under the plan; (d) the state or local government created
the entity; (e) the entity is “administered by individuals who are
responsible to public officials or to the general electorate”; (f) the
state or local government exercises authority over the entity; (g) the
entity performs traditional government functions; (h) the entity's
employees are considered government employees under federal and
state employment laws; and (i) the entity is funded by state or local
government taxes or bonds.
Safe Harbors of Statutory
and Regulatory Exemptions
• Government, Church, and Other
– Indian Tribal Governments
– Church Plans
– Governmental Entities
• Subject to Public Health Service Act (PHSA
– Programs maintained solely to comply with statelaw requirements for
•
•
•
•
Workers compensation
Unemployment compensation
Disability insurance
Plans maintained outside the U.S. for non-aliens
Key ERISA Requirements
• Plan document must exist for each Plan.
• Plan terms must be followed and strict fiduciary standards
adhered to.
• Summary Plan Description (SPD) must be furnished
automatically to Plan Participants.
• Summary of Material Modifications (SMM) must be furnished
automatically to Plan Participants when a Plan is amended.
• Copies of certain Plan documents must be furnished to
Participants and beneficiaries on written request and made
available for inspection.
• IRS Form 5500 must be filed annually for each Plan (over 100
Participants).
• Summary Annual Report (summarizing IRS Form 5500
information) must be furnished automatically.
Disclosure: Disclose What?
• ERISA requires the disclosure of certain information about the welfare
benefit plan.
• The Summary Plan Description (“SPD”) – cornerstone of ERISA
– primary vehicle for disclosure and to inform participants and beneficiaries about their rights
and benefits under the plan.
–
the form and content are dictated by the regulations.
• Summary of Material Modification (“SMM”)
– required if there is a material modification or reduction to the plan.
• Summary Annual Report (“SAR”) - provides financial information on the plan.
–
Required if Plan Sponsor files a 5500 return
Sources:
• 65 Fed Reg. 70226 (Nov. 21, 2000)
• ERISA Sections 502(i) and (l)
• DOL Reg. Sections 2520.104b-3(c) and 2520.104b-10(d)
Disclosure: Disclose When?
A Summary Plan Description must be provided:
•
To a newly covered participant within 90 days after the participant
becomes covered under the plan.
•
A new plan within 120 days after the plan first becomes subject to
ERISA.
A Summary of Material Modifications must be provided within 210 days
after the end of the plan year in which the modification is adopted (even if
the change is retroactive).
•
If there has been a material modification since the last SPD was
released then an updated SPD must be provided within 5 years of the
material modification.
•
If there has not been a material modification since the last SPD was
released then an updated SPD must be provided within 10 years of the
last SPD.
Disclosure: Disclose When?
A Summary Annual Report must be furnished no later than
9 months after the close of the plan year.
• Deadline provides the plan administrator 2 months after
the Form 5500 filing is due to prepare and distribute the
SAR.
• If the Form 5500 filing is extended, the SAR is due 2
months after the extended due date.
Sources:
• ERISA Sections 104(b)
• DOL Reg. Sections 2520.104b-10
Disclosure: Disclose How?
SPDs, SMMs and SARs must be furnished in a way
“reasonably calculated to ensure actual receipt by all
participants covered under the plan.”
Approved methods include:
• First, second or third class mail
• Special insert into a company or union publication
• In hand delivery
SPDs, SMMs and SARs can be disclosed electronically to all recipients if:
• Notice of the significance of the document is provided to each recipient
• A paper version is made available on request at no charge
• Any confidential information is protected
• The participant has work related computer or consents
Responsibility for disclosure remains with the plan administrator.
Sources:
• ERISA Sections 104(b)
• DOL Reg. Sections 2520.104b-1(b)(1)
• 67 Fed Reg. 17263 (Apr. 9, 2002)
Other Disclosures to Participants and
Beneficiaries
• Providing Copies of Documents on Written Request
– Upon written request by a Participant or beneficiary, the ERISA Plan
administrator must furnish:
• Copy of latest SPD and SMM,
• Latest annual report,
• Any terminated report,
• Bargaining agreement,
• Trust agreement, and
• Any contract.
– Any other “instrument under which the Plan is established or
operated” must be provided within 30 days of request.
– Penalties of $110.00 per day may be assessed for each day after
the deadline on which a Plan Administrator fails to respond.
Annual IRS Form 5500 Reporting
• Filing Form 5500 with DOL
– Unless exempted, ERISA Plan Administrator must
report specified information each Plan Year using
Form 5500.
– Reporting obligation applies to each ERISA Plan an
employer sponsors.
Annual IRS Form 5500 Reporting
• Penalties for 5500 Form Failures
– Plan Administrator subject to penalties up to
$1,100 for every day Form 5500 is missing or
incomplete and can be subject to possible criminal
penalties for willful failure to file
– Penalties are cumulative;
• Assessed separately for each missing or incomplete
Form.
• No statute of limitations.
• DOL offers program for voluntary correction of Form
5500 filings.
2013 Annual form 5500 reporting
• New 5500 filing requirements:
– 2013 Returns, an additional page titled Form M-1
Compliance Information must be attached to each filed
return indicating whether the employer/Plan Sponsor does
or does not file an IRS Form M-1.
– Per IRS Publication 2013 Instructions for Filing Form 5500:
•
All welfare plans must provide an attachment that is clearly labeled at the top: Form M-1
Compliance Information attachment. The attachment must state the following:
–
–
–
If the Plan provides welfare benefits, whether the Plan was subject to the Form M-1 filing
requirements during the Plan Year;
If the Plan was subject to the Form M-1 filing requirements, whether the Plan is currently in
compliance with the Form M-1 filing requirements;
Provide the Receipt Confirmation Code for the 2013 Form M-1 Annual Report. If the Plan was not
required to file the 2013 Form M-1 Annual Report, enter the Receipt Confirmation Code for the most
recent Form M-1 that was required to be filed under the Form M-1 filing requirements. (Failure to
enter a valid Receipt Confirmation Code will subject the Form 5500 filing to rejection as incomplete.)
2013 Annual form 5500 reporting
•
A welfare benefit plan’s failure to attach a statement indicating
whether it is subject to the Form M-1 filing requirements, and if so,
whether they are currently in compliance with such requirements
and failure to provide a valid Receipt Confirmation Code, will
subject the Form 5500 filing to rejection as incomplete and civil
penalties may be assessed pursuant.
• All welfare plans filing Form 5500—even those not required to file
Form M-1—are required to attach a “Form M-1 Compliance
Information” statement regarding whether they filed Form M-1.
While the Form 5500 instructions describe this latter requirement,
it may be a trap for the unwary because nothing on the Form itself
(or in the EFAST2 electronic filing system) prompts filers for the
attachment
IRS Form 5500 Exemptions
• Small unfunded or insured plans are completely exempt.
– To be considered a small Plan, you must have fewer than 100
covered Participants at the beginning of the Plan Year.
– Only Participants actually covered under Plan are counted.
– Includes COBRA qualified beneficiaries and retirees covered in the
Plan, but does not include covered spouses and dependents.
• Form 5500 exemption is available to:
– Small unfunded Plans (benefits paid from the employer’s general
assets).
– Small insured Plans (paid through insurance policies other than
stop-loss coverage); Stop Loss policies are not insurance for this
purpose since they pay no benefits on behalf of employees.
– Small combination Plans (combination of general assets and
insurance).
IRS Form 5500 Exemptions (cont’d.)
• DOL Reg. §2520.104-20 also provides a complete Form 5500 reporting
exemption for certain small insured welfare plans. Remaining
requirements of the small insured plan exemption, specifically that:
– benefits must be paid exclusively through insurance policies issued by
qualified insurance companies or similar organizations or through
qualified health maintenance organizations;
– premiums must be paid directly by the employer from general assets or
partly from Participant contributions, provided that the Participant
contributions are forwarded to the insurer or HMO as soon as possible but
no later than three months after being withheld or contributed; and
– insurance refunds to which contributing Participants are entitled must be
refunded within three months, and Participants must be informed, when
they enter the plan, about the plan's provisions for allocating refunds.
• Large plans need only reimburse any refunds to EE within three months to
avoid filing Schedule H.
Medical Loss Ratio (MLR)
•
The Patient Protection & Affordable Care Act (PPACA) requires that insurers
spend a certain percentage of premium dollars on healthcare-related costs
– – 85% for large group plans and 80% for small and individual market.
•
If an insurer does not meet the MLR standard, they are required to provide an
annual rebate to each enrollee.
– Payment of the first rebates was required by August 1, 2012.
– Under the final rule adopted in December, 2011 insurers must provide the
rebate to the policyholder, which is typically the employer.
•
•
•
•
The Department of Labor (DOL) has determined the rebates are Plan assets.
If the Plan Document/SPD is silent, 100% of the rebate falls under Plan assets.
By adding the terms via the ERISA Plan Document Amendment/Summary of
Material Modification (SMM), the employer can retain a prorated portion of
the rebate equal to the percent of premium the employer paid.
Only the percent of the rebate equal to the percent of premium the
Participant paid is considered a Plan assets and must be used exclusively for
the benefit of the Plan.
Healthcare Reform’s Impact
on Benefits Plans
Healthcare Reform and ERISA SBC
• The PPACA adds a new twist to the ERISA SPD requirements by
requiring insurers of insured health plans and Plan Administrators
of self-insured health plans to provide applicants and enrollees a
"summary of benefits and coverage" (SBC).
• Modified in final regulations (published 2-14-2012): Can be a
“Stand alone” document or as combination with other summary
materials;
– In SPD: must be prominently displayed at beginning of the document; and
in accordance with timing requirements for disclosure.
• Applicability Date: the first day of the first Plan year that begins
on or after September 23, 2012.
Affordable Care Act (ACA) 2014 Provisions
• Coverage to be offered through a Health
Insurance Marketplace (aka, the Exchange)
• Premium tax credits to assist individuals in
purchasing such coverage
• Employer notice to employees of coverage
options available through the Exchange
For more details please visit : http://www.dol.gov/ebsa/healthreform/
Health Insurance Marketplace/Exchange
• Competitive, private market for individuals to
access affordable healthcare coverage
• Open enrollment began October 1, 2013
• Access began January 1, 2014
Employers Subject to Notice Requirement
• Employers under FLSA:
– Employers that employ one or more employees who are engaged in,
or produce goods for, interstate commerce
– Most firms with an annual dollar volume of sales or receipts in the
amount of $500,000 or more
• The FLSA also specifically covers the following entities:
– hospitals; institutions primarily engaged in the care of the sick, the
aged, mentally ill, or disabled who reside on the premises;
– schools for children who are mentally or physically disabled or gifted;
preschools, elementary and secondary schools, and institutions of
higher education; and
– federal, state and local government agencies
FLSA Advisor Site: www.dol.gov/elaws/esa/flsa/scope/screen24.asp
Exchange Notice - Required Content
• Exchange Notice must include the following content:
– The existence of an Exchange, with a description of the services
provided by the Exchange, and how to contact the Exchange to request
assistance
– Information regarding eligibility for a premium tax credit or premium
through the Exchange if the employer plan's share of the total cost of
benefits under the plan is less than 60%
– Information notifying employees:
• (a) if they purchase a qualified health plan through the Exchange, they
may lose the employer contribution toward the cost of employerprovided coverage; and
• (b) all or a portion of employer contributions to employer-provided
coverage may be excludable for federal income tax purposes
Model Notice
Serves as a guideline
template for employers to
create their Exchange
Notice.
Two Forms Available:
(1)Employers offering health
coverage
(2)Employers not offering
health coverage
Model Notice – SPD Referral
• Bottom of page 1 of Model Notice to employees:
“For more information about your coverage offered
by your employer, please check your Summary Plan
Description or contact_____________.”
This statement refers to an ERISA Summary Plan Description (SPD)
Are you prepared to
provide every employee with an
ERISA SPD if requested?
Failure to Provide ERISA SPD
• Employers have only 30 days to provide an SPD
to an employee upon written request
• After 30 days, the employee can collect
$110/day from the employer until SPD is
received
Can you afford to pay $110 per day to
each employee requesting an SPD?
Reporting and Excise Taxes for Health Plan
Noncompliance
• Return of Certain Excise Taxes Under Chapter
43 of the Internal Revenue Code
– Historically, the IRS has not been very active in
examining health plans for compliance.
– IRS final regulations require employers to selfreport violations of these rules and pay related
excise taxes.
– Must report health plan compliance failures
annually on IRS Form 8928.
Reporting and Excise Taxes for Health Plan
Noncompliance (cont’d.)
– Violations of COBRA, HIPAA and the genetic anti-discrimination law
(GINA) can result in excise taxes of $100 per day per individual
affected.
• Federal healthcare continuation requirements (COBRA).
• Health plan portability and nondiscrimination requirements
(HIPAA).
• Mental health parity (Mental Health Parity & Addiction Equity Act,
or MHPAEA).
• Minimum hospital stays for newborns and mothers (Newborns’ &
Mothers’ Health Protection Act).
• Women’ s Health & Cancer Right Act (WHCRA).
• Genetic nondiscrimination requirements (Genetic Information
Nondiscrimination Act, or GINA).
• ACA mandates
• Coverage of dependent students on medically necessary leaves of
absence (Michelle’s Law).
• Health savings account (HSA) and Archer medical savings account
(Archer MSA) contribution comparability requirements.
Reporting and Excise Taxes for Health Plan
Noncompliance (cont’d.)
• How Can the Excise Tax Be Avoided?
– No excise tax is imposed during the period when the employer did not
know, or exercising reasonable diligence would not have known, that a
Plan failure existed.
– Once the Plan failure is discovered, no excise tax will be imposed if the
failure was attributable to reasonable cause and the failure is “corrected.”
• “Corrected” means fixing the failure retroactively (to the extent possible)
within 30 days of the first date on which the error was known or should
have been known, and placing any affected individual in at least the same
financial position as he or she would have been had the failure not
occurred.
• IRS Form 8928 and its instructions contemplate clearly that Plan failures
must be reported even when they were corrected fully in a timely fashion,
such that no excise tax is due.
• To avoid excise taxes under this new self-reporting regime, employers and
administrators of group health plans should have procedures and
processes in place that are designed reasonably to ensure compliance.
Surviving an Audit
DOL ERISA Enforcement
• DOL's Investigation Powers
– The DOL's investigative authority comes from ERISA
§504,
• Provides the agency with power to investigate whether
“any person has violated or is about to violate any provision of
ERISA Title I or any regulation or order issued under Title I.”
• The DOL may commence an investigation and require
records whether or not it has reasonable cause to believe any
particular violation exists
DOL ERISA Enforcement
• ERISA §504(a)(1) permits the DOL to investigate whether any person
has violated or will violate ERISA.
• ERISA §504 states that the DOL may make available to any person
actually affected by any matter which is the subject of an investigation
(and to any department or agency of the United States), information
concerning any matter which may be the subject of an investigation.
• In addition to its power to obtain documents in connection with an
investigation, the DOL has the broad general authority to request
production of documents “relating to” an ERISA plan.
DOL ERISA Enforcement
• How EBSA Determines Whom to Investigate
–
–
–
–
Participant complaints
5500 targeting
Specific national office initiatives (randomly)
News stories and press tips
DOL ERISA Enforcement
• What is the Process of A DOL Audit?
– Document Request Letter (Either Limited
Targeting or an Open Investigation)
– Document Production
– On‐Site Interviews/On-line reviews
– No Action/Violation Letter
– Closing Letter/Settlement Agreement
– Civil Litigation Referral or Criminal Investigation
DOL ERISA Enforcement
• Document Request
– Example attached ‐ 49 potential items for review, 26
to be copied and provided in advance of the audit
•
•
•
•
•
•
•
•
•
•
•
•
Plan documents, including amendments
SPD, Benefits Booklet and other docs
Summary of Material Modifications
IRS determination letters
Signed 5500s
Summary Annual Reports (SARs)
Transaction records (bank statements,
cancelled checks
List of plan service providers and
associated contracts
Participant enrollment packages
Required health reform notices
• Identity of plan trustees, administrators, etc.
• All policies and procedures (P&Ps) related
to ERISA Title I (HIPAA, MHPA, COBRA, etc.)
describing eligibility
• P&Ps related to determining plan eligibility
• P&Ps related to claims and appeals
• P&Ps related to claims and appeals
• NMHPA and WHCRA notices
• HIPAA special enrollment notices
• Claims incurred reports
• Materials describing wellness programs
DOL ERISA Enforcement
• Will the Department of Labor Sue if there is a
violation found?
– EBSA often pursues voluntary compliance as a
means to correct violations and restore losses to
employee benefit plans.
– In cases where voluntary compliance efforts have
failed, or which involve issues for which voluntary
compliance is not appropriate, EBSA forwards a
recommendation to the Solicitor of Labor that
litigation be initiated.
DOL ERISA Enforcement
• Civil Penalty Assessments
– The DOL has authority to assess penalties for
numerous ERISA violations. Common penalty
assessments:
• Failure to file Form 5500s (including failure to file complete Form
5500s )
• Failure to timely respond to requests for information
• Prohibited transactions
• Other breaches of fiduciary duty
• ERISA §502(l) provides that the DOL will assess a civil penalty against
the fiduciary or other person in an amount equal to 20% of the
amount recovered under a settlement agreement with the Secretary
of Labor through an adverse court decision in an action instituted by
the Secretary of Labor.
DOL ERISA Enforcement
• Criminal Investigations
– Criminal investigations result from evidence or allegations of
potential criminal violations regarding a plan.
– A criminal investigation may result from an initial civil
investigation (such as a limited or fiduciary investigation) and
may be conducted concurrently with a civil investigation.
– EBSA conducts investigations of criminal violations regarding
employee benefit plans such as embezzlement, kickbacks, and
false statements under Title 18 of the U.S. Code.
– Any later prosecution of these criminal violations is handled by
the U.S. Attorney's Office.
DOL ERISA Enforcement
• Criminal Investigations (cont.)
– Title 18 contains three statutes that directly address
violations involving employee benefit plans:
• theft or embezzlement from employee benefit plans;
• false statements and concealment of facts in relation to documents required
by ERISA; and
• offer, acceptance, or solicitation to influence operations of employee benefit
plans.
– In addition, ERISA contains the following criminal
provisions:
•
prohibition against certain persons holding certain positions;
• willful violation of Title I of ERISA's reporting and disclosure rules; and
• Coercive interference.
DOL ERISA Enforcement
DOL ERISA Enforcement
DOL ERISA Enforcement
DOL ERISA Enforcement
DOL ERISA Enforcement
DOL ERISA Enforcement
ERISA Reporting & Disclosure
Penalties
ERISA Reporting & Disclosure
Penalties
ERISA Reporting & Disclosure
Penalties
Compliance Solutions
Why ERISAEdge?
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•
•
•
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•
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Administrative Service
Document and Form Preparation
Mega-Wrap or Wrap Document
Plan Document and SPD
IRS Form 5500 and Schedules
Free PCORI Services
Model Exchange Notice with complete instructions for
preparation
• Summary Material Modification
• Summary Annual Report
• ERISA and Healthcare Reform Notices
Why ERISAEdge? (cont’d.)
• Record-Keeping Assistance
– Assistance with document retention
requirements
– Guidance on document access and
employee rights
• Technical and Customer Service Support
– DOL Audit Assistance
• Guaranteed Compliance
– Monitor legislative and regulatory changes related to
ERISA
– Establish a Hold Harmless Agreement
Service Features
• All-inclusive fees – no additional charges or
hidden fees.
• No ties to any insurance or other employee
benefits plan.
• ERISAEdge Administrative Manual.
• Dedicated ERISA Representative.
• DOL Audit Assistance
• Hold Harmless Agreement
Thank You!