Quick! The U.S. Department of Labor has sent you an investigatory letter informing you that they will be auditing your employee health plan. How do you respond?
The Department of Labor has the authority to conduct an investigation of your employee benefits plan to ensure that it conforms to the Employee Retirement Income Security Act (ERISA), and can focus on areas from reporting, to fiduciary obligations, to disclosure requirements. Recently, the DOL’s Employee Benefits Security Administration (EBSA) has expanded its scope to include the enforcement of the Affordable Care Act (ACA)’s regulations, which are constantly on the rise.
The potential consequences of a DOL audit are manifold. As an example, retirement plan audit reports from the 2013 fiscal state that almost 75% of investigations resulted in the assessment of penalties, and required corrective action, such as disgorging profits, paying amounts to restore losses, and ensuring that these claims were properly processed and paid.
In just a brief snapshot, we’ve illustrated how tedious and stressful the DOL auditing process can be. As with any situation, prevention is better than remedy, and we’re here to offer you guidance on how to prepare for a DOL audit, or how to potentially avoid one.
Establishing Your Gameplan
Encountering this sort of bump in the road is certain to disrupt your day-to-day business operations – that is, if you are unprepared. Being required to pay penalties, or correct mistakes within your health plan is laborious (to say the least), and no one is exempt from a potential DOL audit. If you are selected, however, this doesn’t necessarily mean that your health plan is in violation of ERISA or ACA standards. There are common triggers that can provoke and audit, and ways to minimize your exposure to this process. Use this knowledge to your advantage!
Common triggers for a DOL audit include:
- Participant complaints to the DOL about potential ERISA violations. (According to a DOL audit summary, 775 new investigations were opened as a result of participant complaints in 2013 for retirement plans. Data from that same year also show that 236,000 employee complaints resulted in DOL audits.
- Answers on the plan’s Form 5500. Let’s say the form is incomplete, or has been inconsistent from year to year; the DOL may investigate the issue further.
- The DOL’s national enforcement priorities or projects, which target the DOL’s resources on certain issues. Here is an instance under which you might not be at fault, assuming that all employee health plans are ACA and ERISA-friendly.
You can reduce, and minimize your risk of being audited, by following these tips.
- Respond to participants’ benefit questions and requests for information on a timely basis.
- File Form 5500 on time, and make sure it is complete and accurate.
- Distribute participant notices required by law (for example, the Summary of Benefits and Coverage) by the deadline.
- Make timely updates to plan documents and summary plan descriptions (SPDs) to reflect legal and design changes.
Again, just because you have been selected for an audit does not mean that you have violated employee benefits law. Being “ahead of the game” by making all employee health plans lawfully compliant, and ready to occasion the necessary documents will save you major amounts of money, and a serious headache.
For information on how to maintain records in the event of a DOL audit, or on how to make your current employee health care ERISA and ACA compliant, download our past webinar here.
Navigating the DOL Audit
Thousands of employers are selected by the Department of Labor each year for an audit. Knowing how the process works will give you an edge if they decide to knock at your door. Successful navigation of the DOL audit process starts with responding to the initial investigatory letter. Typically, the letter will inform you of whether a “limited review,” or a full-scale investigation is taking place. Regardless of the scope, there are some critical next steps that can make the process go much more swimmingly.
Your letter will request specific items and documents for you to provide, as well as expected due dates for each item. This makes it important to have an organized system of recordkeeping; you never know when your company will be selected for a DOL audit. Once you do know that you have been selected, here are some action items to consider:
- Establish a contact person at the company for the investigation.
- Secure legal counsel for assistance with the audit process. (We strongly recommend utilizing a qualified ERISA attorney to aid you in this process.)
- Negotiate or clarify the scope of the document request and, if necessary, ask for an extension to the response deadline.
- Make copies of all the requested documents for the DOL and review them for accuracy.
- If a discrepancy is found while compiling the documents, consider providing an explanation.
- Prepare your staff for on-site visits and interviews.
There are some common items that are requested during a DOL audit, which include:
- Plan document (or insurance booklet/certificate for an insured plan)
- Summary plan description (SPD), including updates or summaries of material modifications (SMMs)
- Forms 5500 and attachments, including supporting documentation (if applicable)
- Documents showing compliance with COBRA, including general notice, election notice, notice of COBRA unavailability, notice of early termination and notice of insufficient payment
- Many more
To further help you navigate a DOL audit, download our Document Request Checklist.