November 29, 2015

Department of Labor Seeks Missed Filings for Employee Welfare Benefit Plans

Have you received an email from the Department of Labor recently? If not, you may. The Department has recently begun a program to identify whether employee “welfare benefit plans” (typically, group health plans) have filed a Form 5500 Annual Return/Report as required by Title I of the Employee Retirement Income Security Act of 1974 (ERISA). This program includes emails to thousands of plan sponsors.

Generally, a Form 5500 Annual Report must be filed by all employee welfare benefit plans with 100 or more participants. However, no filing is required for those plans with fewer than 100 participants that are either fully insured or self-insured (that is, where the benefits are paid directly out of the sponsor’s assets).

The Department’s Office of the Chief Accountant (OCA), the office charged with monitoring whether employee benefit plans comply with the annual reporting requirements of ERISA, has recently commenced a program to identify whether certain employee health or welfare benefit plans have filed a Form 5500.

To identify which welfare plans may have failed to file this required Form, the OCA has begun sending to Plan Administrators a “Request for Clarification.” These requests are being sent to Plan Administrators who have filed a Form 5500 for an employee retirement plan, and they request that the Plan Administrator tell the OCA whether a filing has been completed for the employer’s welfare benefit plans. The goal of the request is to educate Plan Administrators who are not aware of the Form 5500 requirements for welfare plans and to afford them the opportunity to participate in the Department of Labor’s Delinquent Filer Voluntary Compliance Program (DFVCP).

The DFVCP allows plans which have failed to file a Form 5500 by the deadline (generally the last day of the seventh month after the close of the plan year) to file the Form, provide required information and pay a reduced penalty. Under the DFVCP, the fee for a delinquent filing is $10 per day for each day a filing is late; however, this amount is capped at a total of $2,000 for a single filing for a large plan (generally defined as greater than 100 participants), and $750 for small plans that are subject to the filing requirement. The reduction in fees can be significant for plans which have failed to file multiple Forms 5500 as the fee is capped ($4,000 for a large welfare benefit plan and $1,500 for small plans), regardless of the number of Forms filed under the program.

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About this Author

Ben F. Wells, Dinsmore Shohl, Wealth Planning Lawyer


Ben Wells is a Partner in the Corporate Department and is Chair of the firm's Tax, Benefits and Wealth Planning Practice Group. He leads the firm's Fringe Benefits Committee and is a member of its Practice Management Council. Over a period of more than 25 years, Ben has advised and counseled clients on a full range of issues relating to employee benefits and executive compensation.

Ben works with Fortune 500 companies, privately held employers, not-for-profit employers, state and local governmental entities, health care providers, private equity investors, ERISA plan...

Nicole Hanna, Corporate Attorney, Dinsmore Law Firm, tax, wealth planning lawyer

Nicole is a member of the Tax, Benefits and Wealth Planning Practice Group in the Corporate Department. Her practice consists of assisting private and public companies in the design, implementation and maintenance of qualified retirement, non-qualified deferred compensation and health and welfare plans. She is experienced with all types of tax-qualified retirement plans including 401(k) plans, profit sharing plans, 403(b) plans and defined benefit plans. She also has significant experience in advising plan sponsors with compliance issues including ERISA, COBRA, HIPAA and the Affordable Care Act. Specifically, she has experience advising employers with statutory compliance under the Affordable Care Act and strategic plan design of health and welfare benefit plans.