All posts tagged compliance

Minimum essential coverage (MEC) is the type of coverage that an individual must have under the Patient Protection and Affordable Care Act (ACA). Employers that are subject to the ACA’s shared responsibility provisions (often called “play or pay”) must offer MEC coverage that is affordable and provides minimum value.

In the fall of 2015 the IRS issued Notice 2015-68 stating it was planning to propose regulations on reporting MEC that would, among other things, require health insurance issuers to report coverage in catastrophic health insurance plans, as described in section 1302(e) of the ACA, provided through an Affordable Insurance Exchange (an Exchange, also known as a Health Insurance Marketplace). The notice also covered reporting of “supplemental coverage” such as a health reimbursement arrangement (HRA) in addition to a group health plan.

Recently, the IRS released the anticipated proposed regulations, incorporating the guidance given in Notice 2015-68. These regulations are generally proposed to apply for taxable years ending after December 31, 2015, and may be relied on for calendar years ending after December 31, 2013.

The proposed regulations provide that:

  1. Reporting is required for only one MEC plan or program if an individual is covered by multiple plans or programs provided by the same provider.
  2. Reporting generally is not required for an individual’s eligible MEC only if the individual is covered by other MEC for which section 6055 reporting is required.

These rules would apply month by month and individual by individual. Once finalized, the regulations would adopt the same information provided in the final instructions for reporting under sections 6055 and 6056 of the ACA.

For examples under the first rule and more detail on the second rule, as well as how to avoid penalties, view UBA’s ACA Advisor, “Reporting Minimum Essential Coverage”.

Originally published by www.ubabenefits.com

Reports submitted to the U.S. government that include both names and Social Security numbers (SSNs), such as 1095 and W-2 forms, are filtered through U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS). In some cases, employers will receive a No-Match Letter or an Employer Correction Request from the Social Security Administration (SSA) for certain employees. ICE will send a similar letter (the Notice of Suspect Documents) after inspection of files during an I-9 audit when discrepancies are noted.

A mismatch should not be used to take adverse action against an employee, as it may violate state or federal law. It is, however, incumbent on employers who receive such notices to investigate, remediate, and communicate identified errors within established timelines. ICE’s “safe-harbor” procedures include the process employers should follow to resolve questions of worker identity and eligibility to work. These steps, if followed, can eliminate the possibility that a no-match letter can be used as part of an allegation that an employer had constructive knowledge that unauthorized workers were employed in its workforce.

An employer who knowingly ignores facts and circumstances that would lead a person, through the exercise of reasonable care, to determine worker eligibility may incur penalties of $216 to $2,156 per employee, with additional aggregate fines up to an additional 25 percent.

“Actual” knowledge means that an employer willfully employed a worker knowing that the person was ineligible to work.

“Constructive knowledge” occurs when an employer fails to attempt to resolve no-match situations through inquires, or to take appropriate action within a reasonable time. An employer may also be found liable for constructive knowledge if it ignored indicators that called employment eligibility into question.

The following actions should be taken upon receipt of a no-match letter.

Step 1: Review Records

Employers should check their records to determine if the discrepancy is a clerical error, such as typographical and transcription errors and name changes due to marriage. If this is the case, the employer should:

  • Correct its records. All changes to Section 1 of the I-9 form must be completed by the employee, by drawing a line through the incorrect information and writing in the accurate data. If the employee is no longer employed, no correction may be made. An employer can update Section 2 of the I-9. Documents used to verify eligibility to work in the U.S. and identity must meet acceptable requirements of the form in effect when the I-9 was initially completed.
  • The employer should verify that the updated information matches government records. A free verification service that confirms names and SSNs is available through the Social Security Administration’s Business Services Online.
  • Once verified, the employer should draft a memo that details the manner, date, and time of the verification and attach a signed copy to the employee’s I-9 as well as notify the respective agency of those changes.

ICE’s safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve questions.

Step 2: Require Employees Identified in No-Match Letter to Confirm Information

If the employer is not able to resolve issues identified by the respective agency, it should promptly request that the employee confirm that the employer’s records are correct. A sample employee communication is available at www.ssa.gov/employer/sampleltr.doc.

  • If the employer’s records are not correct, it should (in accordance with the agency letter’s instructions) verify the corrected records if new documents are presented, and report the changes to the agency.
  • The employer should also correct its records. An employer may use Section 3 of Form I-9, or, if Section 3 has already been used for a previous reverification or update, it may complete a new Form I-9. Minimally, page two of the original I-9 should be maintained in addition to the new I-9.
  • If the employee responds that the records are correct, the employee should be instructed to pursue the matter personally with the SSA and notify the employer of any changes.

Once again, the safe harbor provisions allow the employer 30 days from the receipt of the letter to resolve discrepancies.

A discrepancy will be considered resolved only if the employer can subsequently verify with SSA that the SSN and name match or with DHS that documents used to verify eligibility are valid.

In the event the requirements of the no-match letter are not met, download UBA’s free Compliance Advisor, “Employment Eligibility: How to Handle Questions about Worker Identity” for information on two courses of action available to employers.

Originally published by www.ubabenefits.com

The U.S. Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) began a pilot program in 2012 to assess the procedures implemented by covered entities to ensure compliance with the Health Insurance Portability and Accountability Act (HIPAA). OCR evaluated the effectiveness of the pilot program and then announced Phase 2 of the program on March 21, 2016. Phase 2 Audits focus on the policies and procedures adopted by both covered entities and business associates to ensure they meet selected standards and implementation specifications of the Privacy, Security, and Breach Notification Rules. Covered entities include health plans, health care clearinghouses, and health care providers; whereas, business associates include anyone handling health information on behalf of a covered entity.

Phase 2 Audits of business associates focus on risk analysis, risk management, and reporting of HIPAA breaches to covered entities. OCR emphasizes the importance of audits as a compliance improvement activity in order to identify best practices and proactively uncover and address risks and vulnerabilities to protect health information (PHI).

OCR chose entities to audit through random sampling of the audit pool. Communications from OCR were sent via email, so it is important to check spam filters and junk emails for communications from OSOCRAudit@hhs.gov. OCR emailed a notice to verify contact information. Once the contact information was verified, OCR emailed a pre-audit questionnaire to gather data about size, type, and operations of the entity. This data was used with other information to develop pools of potential covered entities for making audit selections.

Phase 2 Audits consist of three sets of audits. The first set of audits will be desk audits of covered entities and the second set of audits will be desk audits of business associates. These audits will examine compliance with specific requirements of the Privacy, Security, or Breach Notification Rules and covered entities will be notified of their audit in a document request letter. All desk audits in this phase will be completed by the end of December 2016. OCR will select entities and request they electronically submit documentation within 10 days. The third set of audits will be onsite and examine a broader scope of requirements from HIPAA Rules.

On July 11, 2016, 167 covered entities were notified that they were selected for a desk audit. Desk audits of business associates will begin this fall. Download the complete Compliance Advisor, “HIPPA Phase 2 Audits” for best practices for covered entities facing desk or field audits.

Originally published by www.ubabenefits.com

Most employers should be reviewing payroll budgets and job descriptions to ensure that changes to salaries and job classifications are all in order by the December 1 deadline based on the new overtime exempt salary threshold and other final rule changes to the Fair Labor Standards Act (FLSA). Another area that will be impacted by these changes and needs review now is employee benefits.

Review Now

This is the best opportunity to review your company’s eligibility requirements for certain benefits and benefit levels. Some benefit plans may include eligibility requirements based on exempt versus nonexempt status or salary versus hourly status. With the FLSA changes soon approaching, and many companies preparing for their annual open enrollment periods, you may want to use these next few months to review your eligibility requirements and make any necessary changes. These classification changes may unintentionally cause a reduction or loss of certain benefits for some of your employees. Retirement Plans

Retirement Plans

Often, company contributions to retirement savings plans are based on an employee’s salary level. These contributions will increase as you raise salaries or incur additional overtime costs. The costs of short-term disability, long-term disability, and group life insurance plans are frequently based on an employee’s annual earnings; therefore, there may be an increase in these benefits costs as well. Review the eligibility requirements for health and welfare benefits and other fringe benefits offered by your company. Determine if any employees may be impacted and consider whether you will make any changes to those benefit plans.

Affordable Care Act

With regard to the Affordable Care Act (ACA), higher pay may increase the employee threshold for affordability if your company is using the rate of pay or W-2 safe harbor methods to determine health care affordability. Additionally, higher pay may reduce any government-provided health care subsidies that employees may currently be able to receive.

Tracking

Your company’s tracking method for recording hours of service when reviewing your employees’ measurement and stability periods should also be reviewed. Some employers may use different methods for different classes of employees. A change in class for certain employees may impact their measurement and stability period for health care benefit eligibility.

Time Off

Paid time off accruals, paid sick leave accruals, and workplace flexibility will all need to be addressed as you work through these changes. It is extremely important for you to be able to explain the changes to your employees and reinforce the fact that the new overtime law does not negate their importance to the company.

Communicating Changes

Managers should already be talking to employees about these changes and allowing employees to ask questions. Companies need to think about new ways of maintaining the same level of flexibility and autonomy that many of their exempt employees have enjoyed in the past. This may mean thinking of new and different ways of getting the work done that will provide a sense of empowerment and autonomy to the employees. Cross training, work sharing, and fine-tuning processes will allow better efficiencies enabling employees to accomplish more without the need for excessive work hours.

Employee engagement and morale issues are critical concerns as many currently exempt employees, particularly managers, will feel that they have lost their status and prestige. HR professionals and other senior leaders in the organization should be available to have open discussions with these employees to explain the new law and reinforce that this has nothing to do with their overall job performance or level of responsibility. For most, this does not mean a change in job duties; it merely means a change in the recording of hours and method of payment. When managed correctly, employees should not see a reduction in their wages. They should earn approximately the same as or more than their current salary, based on a wage increase, overtime earnings, or adjustment to a comparable hourly wage.

There is no argument that these changes will be significant for many employees. The continued FLSA minimum salary adjustments scheduled to occur every three years will create a new paradigm shift in how exempt and nonexempt employees are viewed. No longer can it be said that all managers are exempt employees, as many will continue to manage employees and also be eligible for overtime. Remember that you can pay your nonexempt employees a salary, but you also must have a method to record their hours worked and you must compensate them for overtime.

These changes are estimated to impact 4.2 million employees across the United States. How you communicate these changes to your employees will help tremendously in preserving a positive morale in your workplace.

Originally published by www.thinkhr.com

On June 8, 2016, Ohio Governor John Kasich signed legislation (H.B. 523) making Ohio the 25th state to adopt a workable medical marijuana law. The legislation will allow seriously ill patients to use and purchase medical cannabis that will be cultivated and processed in-state.

With regards to employment, the bill does not:

  • Require an employer to permit or accommodate an employee’s use, possession, or distribution of medical marijuana.
  • Prohibit an employer from taking any adverse employment action an employer may take under current law because of a person’s use, possession, or distribution of medical marijuana.
  • Permit a person to sue an employer for taking an adverse employment action related to medical marijuana.
  • Prohibit an employer from establishing and enforcing a drug-testing policy, drug-free workplace policy, or zero-tolerance drug policy or interfere with federal restrictions on employment, including U.S. Department of Transportation regulations.

In addition, a person who is discharged from employment because of the person’s medical marijuana use will be found to have been discharged for just cause under the Unemployment Compensation Law if the use violated an employer’s drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating medical marijuana use and will be thus ineligible for unemployment benefits.

The bill also maintains the rebuttable presumption that an employee is ineligible for workers’ compensation if the employee was under the influence of marijuana and being under the influence of marijuana was the proximate cause of the injury, regardless of whether the marijuana use is recommended by a physician.

The law goes into effect September 8, 2016.

Originally published by www.thinkhr.com

0826The Health Insurance Portability and Accountability Act (HIPAA) established national standards to secure and protect the privacy of health information. The Health Information Technology for Economic and Clinical Health Act (HITECH) requires the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) to conduct audits of covered entities and business associates in order to ensure compliance with the HIPAA Privacy, Security, and Breach Notification Rules.

OCR initiated a pilot program in 2012 to assess the processes implemented by 115 covered entities to comply with HIPAA’s requirements. The pilot program was a three-step process: (1) initial protocol development, (2) test of these protocols by conducting 20 audits, and (3) full audit execution using revised protocol materials, which were completed by the end of December 2012.

OCR selected a pool of covered entities for audits that broadly represented a wide range of healthcare providers, health plans, and healthcare clearinghouses. Criteria to select entities to be audited included whether the entity was public or private, size of the entity, affiliation with other healthcare organizations, the type of entity and relationship to patient care, past and present interaction with OCR concerning HIPAA enforcement and breach notification, as well as geographic factors.

A wide range of covered entities were audited in Phase 1. The audit process began when selected entities received a notification letter from OCR notifying them of their selection and asking them to provide documentation of their privacy and security compliance efforts. Every audit included a site visit during which auditors interviewed key personnel and observed processes to determine compliance. Following the site visit, auditors developed a draft audit report which described how the audit was conducted, what the findings were, and what actions the covered entity took in response to those findings. The covered entity had the opportunity to remedy any compliance issues. The final report included the steps the entity took to resolve any compliance issues identified by the audit and it also described best practices.

OCR used the final audit to understand HIPAA compliance efforts and to determine the types of technical assistance that should be developed and the types of corrective action that are most effective. The technical assistance and best practices that OCR generated assisted covered entities and business associates in improving their efforts to keep health records safe and secure.

Originally published by United Benefit Advisors – Read More

0809Your new position just got approved and, finally, that mission-critical headcount addition is green-lighted. Celebration ensues until the actual work of finding the ideal candidate begins. The first step is to get a job description. In some cases, a perfectly vetted position analysis and description may exist, one that captures the particulars and purpose of the job. For those not fortunate enough to have a compensation professional providing such information, the search to find the right words to describe the work begins. So launches the journey of a thousand words cut-and-pasted from Indeed.com.

The recent changes to the Department of Labor (DOL) overtime rules, which will impact an estimated 4.2 million workers, put the spotlight back on job descriptions, or more specifically, the content of those documents as businesses are forced to assess whether their employees meet the duties test for exemption. This was not the first time in recent years that the DOL has focused on essential job functions. The 25th anniversary of the Americans with Disabilities Act (ADA) brought additional entitlements to individuals, including extending accommodation to pregnant workers and tagging onto Family and Medical Leave Act (FMLA) time off with allowances for extended ADA leaves. All of these changes rely on documentation of essential job functions and the conditions under which they are performed.

Since the enactment of the ADA, most employers have been incorporating physical requirements into position descriptions. If, however, the level of detail is lacking, the accommodation process can be derailed. Consider:

  • the frequency of physical requirements, not just the weight lifted, and
  • the percentage of time spent standing, sitting, bending, or moving and the level of repetition in the performance of duties.

Exempt (white collar) jobs require unique differentiators, including stamina requirements such as:

  • Longer hours and extended work weeks
  • Percentage of time spent travelling
  • Specific credentials (i.e. CPAs)

Additionally, if there are environmental or psychological requirements applicants must meet, these should be included in the job description.

The ADA views essential job duties through the lens of the ability to perform with or without accommodation, thus taking a broad view of the scope of work. Hence, it may be incumbent on an employer to reassign duties, restrict tasks or change responsibilities in order to accommodate an individual. This can create difficulties when trying to comply with the Fair Labor Standards Act (FLSA).

For example, to be considered exempt under the executive duties test within the FLSA, the employee must:

  • regularly supervise two or more other employees, and
  • have management as the primary duty of the position, and
  • have some genuine input into the job status of other employees (such as hiring, firing, promotions, or assignments).

The regulations call out specific management duties including training, appraising productivity, monitoring work, and, in general, being “in charge.” In the event that such a manager required accommodation under the ADA, it is possible that in order to comply with the letter of the law, the removal of responsibilities might result in a situation where the individual is no longer meeting the duties requirement to be considered exempt. In this scenario, it might be advisable, for example, to include language in the job description that establishes presence at work as an essential function of management.

This is not a call to front load the descriptions with an overflow of detail. It is, however, important to ensure that the job description reflects the actual functions and outcomes needed and the conditions that impact those processes. It requires careful consideration and a comprehensive needs analysis.

Free resources for detailed information about jobs include the Bureau of Labor Statistics Occupational Outlook Handbook (www.bls.gov) and O*Net OnLine (www.onetonline.org). Both sites are maintained by the U.S. Department of Labor and have substantial databases of job information that represents thousands of employers nationally, providing evidentiary support for the inclusion of essential job functions in a position description.

The following is a reference chart illustrating the importance of job descriptions under each employment law.

Employment
Law
Impact of the Job Description
Fair Labor Standards
Act (FLSA)
The FLSA looks to the content of a job to as a source of information to complete a duties test to ascertain the exempt or non-exempt status of positions.

A job description is not a stand-alone validation of status, but an accurate list of essential functions can go a long way in confirming an employee’s exempt status.

Americans with Disabilities
Act and Pregnancy
Discrimination Act
Detailed job descriptions outline the requirements for a candidate to be considered “qualified.” An employer is not obligated to accommodate an applicant who cannot meet the legitimate skills, experience, education, or other requirements of a position. Pregnancy is treated the same as any other disability.

Undertaking an interactive dialog with a qualified individual depends on well-defined documentation that articulates the tasks, outcomes and the conditions under which the work is performed.

Employers may need to offer employees alternative positions as an accommodation. As new or existing jobs open, they should be reviewed to ensure the credentials needed are current and viable.

Family and Medical
Leave Act (FMLA)
In lieu of a job description, medical providers rely on employees’ characterization of their work. This can be misleading and cause the provider to miss critical information.

Employees who request intermittent leave for a serious health condition could potentially be given temporary job modifications if medical restrictions were more clearly aligned with essential job functions.

Return to work clearances may be compromised if medical providers are not given detailed information about job requirements.

Occupational Health Act Employers lower their experience rating when they are able to implement a robust light duty return to work program. This requires explicit environmental, physical and emotional details in job descriptions.

Accurate credentialing and experience requirements outlined in job descriptions can alleviate accidents and injuries from unqualified workers.

Title VII, including Age
Discrimination in
Employment
Title VII requires that consideration for hiring and compensation, be based on bona fide job requirements. Accurate, impartial recaps of work requirements can serve as a defense against allegations of bias.

Employee performance, which impacts discipline, promotion and opportunities for advancement should be measured against the road map of a comprehensive job description that is measurable and defendable.

Originally published by United Benefit Advisors – Read More

The Latest UBA Survey data shows employers are flocking to two strategies to control rising prescription drug costs: moving to blended copay/coinsurance models vs. copay only, and adding tiers to the prescription drug plans. Almost half (48.9%) of prescription drug plans utilize three tiers (generic, formulary brand, and non-formulary brand), 4.3% retain a two-tier plan, and 44.1% offer four tiers or more. The number of employers offering drug plans with four tiers or more increased 34% from 2014 to 2015. The fourth tier (and additional tiers) pays for biotech drugs, which are the most expensive. By segmenting these drugs into another category with significantly higher copays, employers are able to pass along a little more of the cost of these drugs to employees. Over the last two years, the number of plans with four or more tiers grew 58.1%, making this a rapidly growing strategy to control costs.

Employers with 1 to 99 employees have been driving the trend to adopt prescription drug plans with four or more tiers. In three years, plans with four or more tiers increased approximately 60% among these groups, making this the top cost-containment strategy for small employers, who make up the backbone of America.

Even the largest employers (1,000+ employees), 81% of which historically have offered plans with two or three tiers, have seen a 12.9% decrease in these plans as they, too, migrate to plans with four or more tiers (albeit more slowly).

The construction, mining and retail industries have also been steadily leading the migration to plans with four or more tiers over the last three years, and in the latest UBA survey, 47.5%, 53.2% and 46.3% of their respective plans fall in this category. But this year, the utilities industry has made a more sudden switch, with 58.3% of those plans now consisting of four or more tiers, leapfrogging its perennial tier-climbing peers. This is a significant jump, considering nearly 20% of plans in the utilities industry were still two-tier plans just three years ago—far more two-tier plans than any other industry group at that time. However, this wasn’t a total surprise since, in the 2014 survey year, the industry had an above-average amount of three-tier plans (65.9% vs. an average of 57.1%).

The education and manufacturing industries are more reluctant to shift to plans with four or more tiers. Over the last three years those industries have maintained the highest amounts of three-tier plans, and in the latest survey, 52.8% of their plans remain at three tiers.

Two-tier plans are becoming nearly as rare as single-tier plans, shrinking 45% to 4.3% of all prescription plans in three years. Agriculture has the most holdouts, with 14.8% of plans still comprised of one or two tiers.

Regionally, the East Central U.S. has been leading the migration to plans with four or more tiers for the last three years, followed by North Central and Southeast employers. In the 2015 survey year, Southeast employers eclipsed East Central employers with 60.7% of their plans with four or more tiers.

Strangely enough, East Central and Southeast employers have the lowest percentage of three-tier plans (34.3% and 34.1%, respectively) but the highest percentage of single-tier plans (4.7% and 4.2%, respectively). Other Western employers (excluding California) also have below-average three-tier plans (40.6%), above-average four-tier plans (49.1%) and above-average (10.2%) one- to two-tier plans.

Groups increasing tiers most aggressively for cost savings

California employers have the most two-tier plans (22.9% vs. the average of 4.3%) which, although still off the charts, represents a 20% decline from the previous survey year.

Mid-Atlantic and New England employers have had the most three-tier plans for the last three years, making them the top resisters of plans with four or more tiers over time.

Groups resisting 4+ tier plans

For more information on prescription drug trends, including the companies making an early leap to five-tier plans, download UBA’s free (no form!) publication: Special Report: Trends in Prescription Drug Benefits.

Originally published by UBABenefits.com

 

roll of old style hundred dollar bills stand on wooden table, Shallow DOFSection 701 of the Bipartisan Budget Act of 2015 contains the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015, which requires the Occupational Safety and Health Administration (OSHA) and most other federal agencies to implement inflation-adjusted civil penalty increases. The Inflation Adjustment Act also allows OSHA a one time “catch-up adjustment” to adjust for inflation since 1990 (the last time penalties were adjusted) along with annual adjustments for inflation based on the Consumer Price Index.

OSHA was required to publish the new penalty levels through an interim final rule in the Federal Register by July 1, 2016. Subsequently, OSHA adjusted the penalty levels which will take effect after August 1, 2016, as follows:

LEVEL CURRENT MAXIMUM PENALTY NEW MAXIMUM PENALTY
Serious, Other Than Serious Posting Requirements $7,000 per violation $12,471 per violation
Failure to Abate $7,000 per day beyond abatement date $12,471 per day beyond abatement
Willful/Repeat $70,000 per violation $124,709 per violation

 

Any citations issued by OSHA after August 1, 2016 will be subject to the new penalties if the related violations occurred after November 2, 2015.

States that operate their own occupational safety and health plans will also be required to raise their maximum penalty amounts to align with the federal OSHA levels.

To help avoid exposure to the new penalties, employers should perform internal audits to ensure compliance with OSHA standards.

Originally published by ThinkHR – Read More

Avoid Increased Penalties by Filing Annual Benefit Plan Reports on Time | Ohio Employee Benefits

Categories: Compliance News, DOL, Industry News, Team K Blog
Comments Off on Avoid Increased Penalties by Filing Annual Benefit Plan Reports on Time | Ohio Employee Benefits

0720Form 5500 is the annual report that group benefit plans use to report required information about the plan’s financial condition and operations. Most group and pension plans that are subject to ERISA are required to file a Form 5500. With the July 31 deadline for calendar year plans fast approaching, and higher penalties for not filing taking effect in August, this is a good time to review this important plan filing.

What is a Form 5500?

Generally, the Department of Labor (DOL), the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation (PBGC) all require an annual benefit plan report filing, although there are many exemptions. A single annual report, known as a Form 5500 or Form 5500-SF, satisfies all three. It includes basic plan, sponsor, and administrator identifying information, the type of annual report being filed, and any related Schedules as attachments to the Form 5500.

Who must file the Form 5500?

Form 5500 is needed for both qualified retirement plans and group welfare plans. For this article, we’ll focus on group welfare plans, which include plans that provide medical, prescription drug, dental, vision, long term and short term disability, group term life insurance, health flexible spending accounts, accidental death and dismemberment benefits, long term care, formal severance policies, and telehealth. While other plans may also be considered welfare plans, these are the most common.

Group welfare plans generally must file Form 5500 if:

  • The plan is fully insured and had 100 or more participants on the first day of the plan year (dependents are not considered “participants” unless they are covered because of a Qualified Medical Child Support Order).
  • The plan is self-funded and it uses a trust, no matter how many participants it has.
  • The plan is self-funded and it relies on the Section 125 plan exemption, if it had 100 or more participants on the first day of the plan year.

Are there exemptions?

Yes, there are several exemptions to Form 5500 filing. The most notable are:

  • Church plans defined under ERISA section 3(33)
  • Government plans, including tribal government plans
  • “Top hat” plans that are unfunded or insured and benefit only a select group of management or highly compensated employees.
  • Small insured or unfunded welfare plans. This includes plans with fewer than 100 participants (including qualified former employees and COBRA beneficiaries) at the beginning of the plan year that are fully insured, entirely unfunded, or a combination of both. An unfunded plan has its benefits paid as needed directly from the general assets of the sponsoring organization.

How many Forms 5500 must be filed?

Generally, the number of Forms 5500 depends on the number of ERISA benefits the sponsor maintains, whether those ERISA benefits are combined into one plan, and whether the sponsor is part of a controlled group or is part of a multiemployer welfare arrangement (MEWA).

The plan’s governing documents and operations determine whether benefits are being provided under a single plan and can be reported on one Form 5500. The Summary Plan Description (SPD), required by ERISA, is a document which designates the ERISA plan number and can be used to bundle multiple benefit lines into a single plan for Form 5500 filing purposes.

When must Form 5500 be filed?

A plan’s Form 5500 must be filed by the last day of the seventh month after the close of the plan year. The filing date is based on the “plan year,” which is designated in the SPD or other governing document. If a plan does not have a SPD, the plan year defaults to the policy year.

For calendar year plans, the due date for the Form 5500 is July 31. Employers may obtain an automatic 2-1/2 month extension by filing Form 5558 by the due date of the Form 5500.

Can the Form 5500 be amended?

Yes, it is recommended that the plan sponsor file an amendment for any of the following situations:

  • The original filing omitted a benefit
  • The original filing created a gap in benefit reporting
  • The Schedule A forms were updated with a 10 percent or more increase in commissions or premiums than originally reported by the carrier
  • Mandatory information critical to the report was incorrect or omitted

What happens if the plan has failed to file a Form 5500?

Penalties!! Under ERISA Section 502, the Secretary of Labor may assess civil penalties of up to $1,100 per day against a plan administrator who fails or refuses to file Form 5500. The DOL is able to assess penalties in connection with Form 5500 failures reaching as far back as the 1988 plan year. Penalties are based on whether the Form 5500 was incomplete, deficient, filed untimely or never filed, and if there was willful disregard for refusing to file.

The current penalty for failure or refusal of a plan administrator to file a Form 5500 is up to $1,100 per day. In August 2016, those penalties will increase from $1,100 per day to $2,063 per day, regardless of whether the violation occurred before or after August 2016. If an annual report is rejected for failure to provide material information, it is treated as not having been filed.

In order to encourage sponsors to file, the DOL created the Delinquent Filer Voluntary Compliance Program (DFVCP). It was created as a means for sponsors to “self-report” their non-compliance, and includes a monetary incentive. If a plan sponsor qualifies for the DFVC Program, the penalties are reduced significantly to $10 per day for the first 199 days. If the plan is within a year of being late, the penalty it is capped at $2,000 per plan. If the plan is more than a year late in filing, there is a $4,000 per plan cap.

If the DOL notifies a plan sponsor of its failure to file a Form 5500 or of the assessment of penalties for failure to file, the plan sponsor is no longer eligible to participate in the DFVCP. Penalties may be assessed for the date the reports were initial due, not the date the sponsor was notified of its delinquency.

It is important to note that criminal sanctions and imprisonment are also possible for willful violations of the reporting and disclosure requirements.

As an example, Employer A and Employer B both sponsor a fully insured medical plan and group term life (GTL) plan for their employees. Each employer has the same number of participants in their medical and GTL plans: 75 participants in the medical plan, and 150 participants in the GTL plan.

The plan year for Employer A’s medical plan is December 1 through November 30. The GTL plan is on a calendar year contract. Employer A does not have an SPD wrap document combining these two plans. Employer A does not have to file a Form 5500 for the medical plan because it is fully insured and has fewer than 100 participants. However, it must file Form 5500 for the GTL plan because it has more than 100 participants. Since the GTL plan is on a calendar year (January 1 to December 31) contract, its Form 5500 is due by July 31, the end of the seventh month following the last day of the plan year.

Employer B, on the other hand, has an SPD wrap document which combines the medical and GTL plans into the same ERISA plan year and plan number. The employer chose that plan year to align with the medical plan’s December 1 – November 30 contract year. In this case, Employer B must file a single Form 5500 for both the medical and GTL benefits information because at least one of the plans has more than 100 participants. Its Form 5500 is due by June 30.

Employers should note that government agencies recently proposed significant changes to Form 5500 reporting, and should ensure they stay up to date on requirements as they change.

Originally published by United Benefit Advisors – Read More