Enforcement Efforts to Protect Participants' Rights in Employer-Sponsored Retirement and Health Benefit Plans (GAO-21-376)
Summary
A GAO report to congressional addressees, GAO-21-376, dated May 2021, on the Department of Labor's Employee Benefits Security Administration (EBSA). It states that EBSA's enforcement focuses on encouraging retirement and health plans to comply with the Employee Retirement Income Security Act of 1974 and on restoring benefits improperly withheld from plan participants. To identify violations, EBSA investigates benefit plans and their service providers. The report examines EBSA's enforcement efforts to protect participants' rights in employer-sponsored retirement and health benefit plans.
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United States Government Accountability Office
Report to Congressional Addressees
EMPLOYEE
May 2021
BENEFITS
SECURITY
ADMINISTRATION
Enforcement
Efforts to Protect
Participants’ Rights in
Employer-Sponsored
Retirement and
Health Benefit Plans
GAO-21-376
May 2021
EMPLOYEE BENEFITS SECURITY
ADMINISTRATION
Enforcement Efforts to Protect Participants’ Rights in
Highlights of GAO-21-376, a report to Employer-Sponsored Retirement and Health Benefit
congressional addressees
Plans
Why GAO Did This Study What GAO Found
Millions of Americans rely on employer The Department of Labor’s (DOL) Employee Benefits Security Administration’s
benefits for their health care and future (EBSA) enforcement focuses on encouraging retirement and health plans to
financial security. Private sector comply with the Employee Retirement Income Security Act of 1974, as amended,
retirement plans are a key source of and restoring benefits that were improperly withheld from plan participants. To
income for many retirees and identify violations, EBSA investigates benefit plans and their service providers.
employer-sponsored group health Over two-thirds of investigation leads are identified by EBSA staff. EBSA
plans cover over one-half of all prioritizes investigating cases that may result in large recoveries or affect many
Americans. Consequently, effective participants, such as restored retirement plan contributions or payment for
oversight and enforcement are critically
incorrectly denied medical claims. When agreement cannot be reached,
important to ensure the integrity of the
investigators can refer civil cases to DOL’s Office of the Solicitor for civil litigation.
private employee benefit system,
especially in light of the economic and
Criminal cases are referred to Department of Justice. In fiscal year 2020, almost
health effects of COVID-19 on 84 percent of investigations were civil and more than 16 percent were criminal,
American workers and their families. resulting in over $3 billion in payments to participants and plans.
EBSA is charged with protecting the EBSA uses a range of strategies to improve its investigative processes and
rights of participants in employer- seeks to ensure enforcement quality through training and oversight. For example,
sponsored benefit plans. As of fiscal EBSA makes efforts to target investigations for greater impact, such as a 2013
year 2020, this included about 154 change to prioritize cases with the potential to affect many participants and
million participants in 722,000
recover significant assets. As EBSA pursued more complex and technical
retirement plans and 2.5 million health
investigations, the number of closed cases decreased, while monetary recoveries
plans with combined assets of over
$10.7 trillion. increased (see figure). To ensure investigation quality, EBSA provides training,
documents procedures, and reviews open and closed cases to evaluate whether
This report examines (1) how EBSA investigation procedures have been followed.
manages its enforcement process, (2)
EBSA’s strategies to improve Number of EBSA Investigations Closed and Monetary Recoveries, Fiscal Years 2011-2020
investigative processes and ensure
enforcement quality, and (3) the
immediate and long-term challenges of
COVID-19 for EBSA and private sector
retirement and health plans. GAO
analyzed EBSA data and documents;
and federal laws, regulations, and
guidance, including the CARES Act
and the Families First Coronavirus
Response Act. GAO interviewed
officials from EBSA’s national office
and three regional offices, selected for
variation in investigations, and
locations as well as stakeholders from
nine organizations knowledgeable The COVID-19 pandemic created a number of immediate and long-term
about benefits compliance challenges for EBSA and benefit plans. For example, according to stakeholders,
requirements, the employer-sponsored plans were initially concerned about how to implement provisions in the Families
benefit industry, and participants’ First Coronavirus Response Act and the CARES Act, but those concerns were
benefit plan experiences. addressed as the agency issued FAQs and notices. Similarly, EBSA officials
reported that court closures temporarily slowed criminal cases, but as virtual
hearings increased, litigation resumed. Stakeholders and EBSA officials also
View GAO-21-376. For more information, described potential long-term challenges, including difficulties locating the many
contact Tranchau (Kris) T. Nguyen at (202)
512-7215 or nguyentt@gao.gov. participants who may have left a job due to the pandemic and may be unaware
they left behind retirement funds.
United States Government Accountability Office
Contents
Letter 1
Background 4
EBSA Enforcement Primarily Focused on Encouraging Plans to
Voluntarily Meet ERISA Requirements and Recovering
Monetary Benefits for Plan Participants 10
EBSA Uses a Range of Strategies to Improve Investigative
Processes and Seeks to Ensure Enforcement Quality through
Training and Oversight 23
COVID-19 Presented Immediate and Long-Term Challenges for
Benefit Plan Compliance and EBSA Enforcement 30
Agency Comments 39
Appendix I Employee Benefits Security Administration (EBSA)
National Projects, Fiscal Years 2011 through 2021 43
Appendix II Employee Benefits Security Administration (EBSA)
Regional Projects, Fiscal Year 2021 45
Appendix III Top 10 Employee Retirement Income Security Act
of 1974 (ERISA) Violations Identified in Investigations 48
Appendix IV GAO Contact and Staff Acknowledgments 50
Tables
Table 1: EBSA Investigator Case Development Activities 17
Table 2: EBSA Major Case Staff Days and Recoveries, Fiscal
Years 2016 through 2020 24
Table 3: EBSA Investigator Training Activities 27
Table 4: Selected DOL, HHS, IRS, and Treasury FAQs and
Notices FFCRA and CARES Act Implementation 31
Table 5: EBSA National Projects, Fiscal Years 2011 through 2021 43
Table 6: EBSA Regional Projects, Fiscal Year 2021 45
Table 7: 10 Most Common ERISA Violation Categories Found in
EBSA Investigations Closed, Fiscal Year 2020 48
Page i GAO-21-376 EBSA Enforcement
Figures
Figure 1: Federal and State Oversight of Retirement and Health
Plans 6
Figure 2: EBSA Regions and Regional Office Locations 8
Figure 3: EBSA Full-Time Regional Investigative Staff, Fiscal
Years 2011-2020 9
Figure 4: Flowchart of the typical Five-Step EBSA Investigative
Process, Data from Cases Opened in Fiscal Year 2017 12
Figure 5: EBSA Benefits Advisor Inquiries and Recoveries, Fiscal
Years 2011-2020 13
Figure 6: Number of EBSA Investigations Opened through
Benefits Advisor Referrals and Annual Recoveries from
Benefits Advisor Referred Cases Closed, Fiscal Years
2011-2020 15
Figure 7: Sources of EBSA Investigations Closed in Fiscal Year
2020 16
Figure 8: EBSA Civil Investigations Closed, Fiscal Years 2011
through 2020 20
Figure 9: EBSA Criminal Investigations Closed, Fiscal Years 2011
through 2020 21
Figure 10: EBSA Cases Closed and Monetary Recoveries, Fiscal
Years 2011 through 2020 22
Page ii GAO-21-376 EBSA Enforcement
Abbreviations
COBRA Consolidated Omnibus Budget Reconciliation Act
COVID-19 Coronavirus Disease 2019
DOL Department of Labor
EBSA Employee Benefits Security Administration
ERISA Employee Retirement Income Security Act of 1974, as
amended
ESOP employee stock ownership plan
FFCRA Families First Coronavirus Response Act
HHS Department of Health and Human Services
IRS Internal Revenue Service
MEWA multiple employer welfare arrangement
PBGC Pension Benefit Guaranty Corporation
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Page iii GAO-21-376 EBSA Enforcement
Letter
441 G St. N.W.
Washington, DC 20548
May 27, 2021
Congressional Addressees
Millions of Americans rely on workplace benefits for their health care and
future financial security. Private sector retirement plans are a key source
of income for many retirees and employer-sponsored group health plans
cover over one-half of all Americans. Consequently, effective oversight
and enforcement are critically important to ensure the integrity of the
private employer-sponsored benefit system, especially in light of the
economic and health effects of Coronavirus Disease 2019 (COVID-19) on
American workers and their families. 1 Employees who experience
unemployment may leave behind retirement savings accounts or lose
employer-sponsored health plan benefits.
The mission of the Department of Labor’s (DOL) Employee Benefits
Security Administration (EBSA) includes ensuring the security of the
health and retirement benefits of American workers and their families. In
fiscal year 2020, EBSA was responsible for protecting the rights of about
154 million workers and their dependents enrolled in employer-sponsored
retirement and health plans. 2 DOL reported that in fiscal year 2020,
EBSA’s oversight authority extended to nearly 722,000 retirement plans
and approximately 2.5 million health plans. 3 Over the past decade, these
1We regularly issue government-wide reports on the federal response to COVID-19. For
the latest report, see GAO, COVID-19: Sustained Federal Action Is Crucial as Pandemic
Enters Its Second Year, GAO-21-387 (Washington, D.C.: Mar. 31, 2021). Our next
government-wide report will be issued in July 2021 and will be available on GAO’s website
at https://www.gao.gov/coronavirus.
2The Employee Retirement Security Act of 1974, as amended, (ERISA) defines participant
as “any employee or former employee of an employer, or any member or former member
of an employee organization, who is or may become eligible to receive a benefit of any
type from an employee benefit plan which covers employees of such employer or
members of such an organization, or whose beneficiaries are eligible to receive any such
benefit.”See 29 U.S.C. § 1002(7). We use the term “participants” to include (1) individuals
who participate in private employer-sponsored retirement plans, (2) individuals receiving
pension or individual retirement payments from a private employer-sponsored plan, and
(3) individuals who are enrolled in or purchase an employer-sponsored group health plan
and their covered dependents.
3For the purpose of this report, we use the terms “benefit plans” or “plans” to refer
collectively to private sector employer-sponsored retirement and group health plans
covered under Title I of ERISA, unless the statement applies to only one type of employee
benefit.
Page 1 GAO-21-376 EBSA Enforcement
benefit plan assets have risen from over $5 trillion to $10.7 trillion. EBSA
describes its enforcement program efforts as targeting the most
egregious and persistent violators, protecting the most vulnerable
populations while ensuring broad-based compliance, and establishing
processes to evaluate the success of enforcement activities.
In 2007, we reported on EBSA’s enforcement program. 4 Since then, there
have been numerous developments, including EBSA promulgating new
regulations under Section 408(b)(2) of the Employee Retirement Income
Security Act of 1974, as amended, (ERISA) (408(b)(2) Fee Disclosure
Rule) and the enactment of legislation such as the Paul Wellstone and
Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 and
the Patient Protection and Affordable Care Act, which have affected the
way that retirement and health plans operate. 5 In light of these and other
developments, including the health and economic impact of COVID-19,
this report examines (1) how EBSA manages its enforcement process, (2)
EBSA’s strategies to improve investigative processes and ensure
enforcement quality, and (3) the immediate and long-term challenges of
COVID-19 for EBSA and private sector retirement and health plans.
To address the first two objectives, we reviewed relevant federal laws,
regulations, and public guidance regarding requirements for EBSA’s
oversight of retirement and health plans. We also reviewed EBSA’s
enforcement manual and other relevant internal guidance and
documentation, including national and regional enforcement projects and
annual operating plans. To describe trends from the past 10 years, we
analyzed staffing data and selected variables from EBSA’s enforcement
4GAO, Employee Benefits Security Administration: Enforcement Improvements Made but
Additional Actions Could Further Enhance Pension Plan Oversight, GAO-07-22
(Washington, D.C.: Jan. 18, 2007).
5The 408(b)(2) Fee Disclosure Rule requires that certain retirement plan service providers
disclose information about the service providers’ compensation and potential conflicts of
interest. See 29 C.F.R. § 2550.408b-2(c)(1). The Paul Wellstone and Pete Domenici
Mental Health Parity and Addiction Equity Act of 2008 requires coverage for mental health
and substance use disorder services—when those services are offered by group health
plans sponsored by large employers (generally employers with more than 50
employees)—be no more restrictive than coverage for medical/surgical services. See Pub.
L. No. 110-343, div. C, tit. V, sub. B, §§ 511-512, 122 Stat. 3765, 3881-3893 (2008).
Among other things, the Patient Protection and Affordable Care Act of 2010 extended
mental health and substance use disorder parity requirements to individual insurance
plans and some small group health plans, and it created new reporting responsibilities for
certain healthcare plans, and such responsibilities are overseen and enforced by EBSA.
See Pub. L. No. 111-148, tit. I, sub. C, §§ 1201, 1302, and 1311(j), tit. VI, sub. G, § 6606,
124 Stat. 119, 161, 163-64, 181, and, 781 (2010).
Page 2 GAO-21-376 EBSA Enforcement
activities database, such as the number of investigations pursued and
their outcomes. We assessed the reliability of trend data by (1)
performing electronic testing of required data elements, (2) reviewing
existing information about the data and the system that produced them,
such as data dictionaries, (3) reviewing written responses from EBSA
about the quality assurance practices used to ensure data integrity, and
(4) interviewing agency official knowledgeable about the data. We
determined that the data were sufficiently reliable for the purposes of our
reporting objectives.
We interviewed officials from EBSA’s national office and three of EBSA’s
10 regional offices—Kansas City, Los Angeles, and Philadelphia—to
understand EBSA compliance and enforcement activities. The interviews
also addressed how the national office monitors and improves the
adherence of its regional offices to the agency’s enforcement policies and
procedures. We selected regional offices to provide variation in caseload,
number of investigators and the number of hours dedicated to
investigations, regional office projects, and location. We also interviewed
managers, benefits advisors, and investigators in each of the selected
offices.
To address the third objective, we reviewed relevant provisions in the
Families First Coronavirus Response Act (FFCRA) and the CARES Act,
and relevant DOL guidance. To identify concerns and perspectives on
retirement and health plans and efforts to meet the needs of plan
participants during the COVID-19 pandemic, we interviewed officials from
EBSA’s national office and selected regional offices, as well as
stakeholders from nine organizations knowledgeable about benefits
compliance, the employer-sponsored benefit industry, and participant
experiences.
We conducted this performance audit from February 2020 to May 2021 in
accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe the
evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
Page 3 GAO-21-376 EBSA Enforcement
Background
Employee Retirement In 1974, ERISA, the federal law that establishes minimum standards and
Income Security Act of requirements governing most private sector employer-sponsored
retirement and group health plans in the United States, was enacted. 6
1974 (ERISA), as
ERISA has been amended to reflect changes in employee benefits, such
Amended, Provisions as the increased use of defined contribution plans (in which plan
participants are generally responsible for making their own investment
decisions and ensuring they have sufficiently saved for retirement). For
example, the Pension Protection Act of 2006 amended ERISA by
expanding the availability of fiduciary investment advice to participants in
defined contribution plans. 7
Amendments to ERISA also expanded benefit protections for employer-
sponsored health plan participants. 8 For example, the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA) provides for the
continuation of group health coverage for covered employees and their
families for a limited time under certain circumstances, such as voluntary
or involuntary job loss or other life events. Also, the Patient Protection
and Affordable Care Act extends the age for dependent coverage,
6See Pub. L. No. 93-406, 88 Stat. 829 (codified as amended in scattered sections of 26
and 29 U.S.C.). Unless otherwise clear from context, when we refer to ERISA, it includes
all amendments by subsequent legislation. For discussion of selected federal legislation
and other milestones shaping retirement in the United States see GAO, The Nation’s
Retirement System: A Comprehensive Re-evaluation is Needed to Better Promote Future
Retirement Security, GAO-18-118SP (Washington, D.C.: October 2017). For additional
information on private health insurance markets and coverage see Private Health
Insurance: Markets Remained Concentrated through 2018, with Increases in the Individual
and Small Group Markets. GAO-21-34 (Washington, D.C.: Nov. 13, 2020) and Mental
Health and Substance Use: State and Federal Oversight of Compliance with Parity
Requirements Varies, GAO-20-150, (Washington, D.C., December 2019).
7Under ERISA, a fiduciary is anyone, such as a sponsor, trustee, investment adviser, or
other service provider, to the extent they exercise any discretionary authority or control
over plan management or any authority or control over the management or disposition of
plan assets; render investment advice respecting plan money or property for a fee or other
compensation, direct or indirect, with respect to any moneys or other property of such
plan, or has any authority or responsibility to do so; or have discretionary authority or
responsibility for plan administration. See 29 U.S.C. § 1002(21)(a).
8The majority of privately insured individuals are covered through group health plans
provided by an employer, an employee organization (such as a union), or multiple
employers through a multiple employer welfare arrangement (MEWA). ERISA does not
cover certain plans, such as those established or maintained by governmental entities or
churches for their employees.
Page 4 GAO-21-376 EBSA Enforcement
supports mental health parity, and requires coverage of emergency
services, among other things.
Employer-sponsored retirement and health plans subject to ERISA
generally must comply with requirements intended to protect the interests
of plan participants. Specifically, among other things:
• plan administrators 9 are required to provide participants with a
summary plan description outlining their benefits, rights, and
responsibilities under the plan, and notify participants of any material
changes;
• plan administrators are generally required to file annual reports, the
Form 5500 Annual Return/Report of Employee Benefit Plan (Form
5500) and applicable nine schedules and attachments that collect
information on particular plan aspects and fulfill specific filing
requirements, including information on plan investment and service
provider fee information, financial condition, annual participant
contributions, and number of participants; 10
• plan fiduciaries are required to discharge their duties solely in the
interest of participants and beneficiaries and for the exclusive purpose
of providing benefits and defraying reasonable expenses of plan
administration and with the care, skill, prudence, and diligence under
the circumstances then prevailing of a prudent man acting in a like
capacity and familiar with such matters;
• plan fiduciaries are generally prohibited from entering into certain
transactions with the plan, such as by dealing with plan assets in the
fiduciary’s own interest; and
• plan fiduciaries are required to maintain reasonable procedures for
filing benefit claims, providing notice of benefit determinations, and
appealing adverse benefit determinations.
9Plan administrators are responsible for administering the day-to-day operations of the
plan. Plan administration may be provided by the plan sponsor or by a third-party.
10The Form 5500 is an important compliance, research, and disclosure tool for the
Department of Labor and a source of information and data for use by Congress and other
federal agencies, in assessing employee benefit, tax, and economic trends and policies.
Page 5 GAO-21-376 EBSA Enforcement
The Role of Employee EBSA is the agency within DOL primarily responsible for ensuring that
Benefits Security employer-sponsored retirement and group health plans comply with
requirements in Title I of ERISA; however, certain compliance issues are
Administration (EBSA) and the responsibility of other state and federal entities (see fig.1). 11 EBSA
Other Enforcement shares responsibility for administering provisions within ERISA with the
Agencies Internal Revenue Service (IRS) and the Pension Benefit Guaranty
Corporation (PBGC). For example, the agencies jointly developed and
maintain the Form 5500. Similarly, EBSA shares responsibility for the
regulation and oversight of group health plans with the Department of
Health and Human Services and IRS.
Figure 1: Federal and State Oversight of Retirement and Health Plans
a
PBGC insures the pension benefits of American workers and retirees who participate in private
sector defined benefit pension plans and guarantees benefits up to statutory limits.
b
The Employee Plans Office of the IRS was created in 1974, following enactment of ERISA, to help
protect the retirement benefits of employees.
c
ERISA has been amended by a number of laws that established additional health plan requirements:
the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Consolidated Omnibus
Budget Reconciliation Act of 1985 (COBRA, the Paul Wellstone and Pete Domenici Mental Health
11EBSA also oversees welfare benefit plans other than group health plans, such as life
insurance and disability insurance plans. See 29 U.S.C. § 1002(1). Oversight of these
other welfare benefits is outside the scope of this report.
Page 6 GAO-21-376 EBSA Enforcement
Parity and Addiction Equity Act of 2008, which generally requires that coverage for mental health and
substance use disorder be no more restrictive than coverage for medical/surgical services; and the
Patient Protection and Affordable Care Act.
d
HHS may investigate and implement corrective action or impose civil monetary penalties for any
non-Federal governmental plan that fails to comply with applicable Public Health Service Act
requirements.
EBSA Organizational EBSA’s national and regional staff work together to ensure plan
Structure participants receive the benefits to which they are entitled. The national
office functions include interpreting ERISA and developing relevant
regulations, as well as developing the enforcement guidance regional
office staff use to address inquiries and conduct investigations. In
particular, the agency’s Office of Enforcement, Deputy Assistant
Secretary for National Operations, and the Deputy Assistant Secretary for
Regional Office Operations focus on ERISA compliance by establishing
investigation processes and providing policy direction, technical
investigative assistance, and oversight to enforcement personnel. The
national office also identifies national priorities and approves regional
office proposals for issues meriting further regional investigation. (See
app. I for national enforcement projects in fiscal years 2011 through
2021). Regional offices may develop their own regional projects and
areas of expertise based, in part, on local issues and the results of
previous investigations. (See app. II for a list of fiscal year 2021 regional
projects). In addition, EBSA’s national office staff also provided training to
EBSA staff on the compliance requirements in new legislation (see fig. 2).
Page 7 GAO-21-376 EBSA Enforcement
Figure 2: EBSA Regions and Regional Office Locations
In fiscal year 2020, EBSA’s regional office staff included 364
investigators, 108 benefits advisors, and 20 specialists, compared to 10-
year highs of 441 investigators in fiscal year 2013, 113 benefits advisors
in fiscal year 2014, and 22 specialists in fiscal year 2015 (see fig. 3).
Page 8 GAO-21-376 EBSA Enforcement
Figure 3: EBSA Full-Time Regional Investigative Staff, Fiscal Years 2011-2020
In addition, other offices within EBSA and other divisions of DOL support
EBSA work. The agency’s Office of the Chief Accountant focuses on
annual reporting and audit requirements by employee benefit plans and
enforces those requirements through the imposition of civil penalties
against plan administrators whose Form 5500 is rejected for being
incomplete or inaccurate. 12 The office also operates under broad authority
to conduct investigations of benefit plans and to inspect benefit plan
records. The Office of the Solicitor provides legal services to EBSA in all
litigation, including enforcement actions. The Office of Inspector General
conducts audits to review the effectiveness, efficiency, economy, and
integrity of all DOL programs and operations, including within EBSA.
Specifically, the Office of Inspector General and EBSA have agreed to
exchange information in investigations involving matters of interest to
12ERISA provides for the assessment of civil monetary penalties on a per day basis for a
plan administrator’s failure to provide required reports to DOL and required disclosures to
participants, among other things. See 29 U.S.C. § 1132(c). See Private Pensions: Clarity
of Required Reports and Disclosures Could be Improved, GAO-14-92 (Washington, D.C.:
Nov. 21, 2013) for more information about those requirements. In addition, ERISA
provides for the assessment of civil monetary penalties against a party in interest who
engages in a prohibited transaction and a fiduciary who breaches their fiduciary
responsibility; the amount of the penalty is a percentage of the amount involved in the
prohibited transaction or a percentage of the applicable recovery amount for breaches of
fiduciary responsibility. See 29 U.S.C. § 1132(i) & (l).
Page 9 GAO-21-376 EBSA Enforcement
both agencies in order to strengthen the protection afforded to plan
participants and their beneficiaries. EBSA and the Office of Inspector
General may also conduct joint criminal investigations.
EBSA generally focuses its enforcement efforts under ERISA in three
EBSA Enforcement broad categories of requirements that apply to both retirement and health
Primarily Focused on plans and their service providers: those related to disclosure of plan
information to participants, reporting to relevant agencies, and fiduciary
Encouraging Plans to responsibilities. (see sidebar).
Voluntarily Meet
EBSA primarily enforces ERISA through civil investigations of retirement
ERISA
General Requirements
Description Selected
and health plans and by encouraging plans to voluntarily remedy any
Requirements of the Employee Retirement
andSecurity Act
Income Recovering of 1974 (ERISA) for violations identified by EBSA’s regional office investigative staff, such as
Retirement and Health Plans Enforced by by restoring plan or participant assets, paying for erroneously denied
Monetary Benefits for
EBSA
services, and making needed administrative changes. See appendix III
Plan Participants
Disclosure: Disclosing plan information to
participants: such as a description of the plan for the ten most frequently identified types of violations in EBSA
and benefits and timely notice of changes to investigations closed in fiscal year 2020. The majority of EBSA
the plan
investigations are civil and only a small portion involve criminal acts. In
Reporting: Reporting to EBSA and other
agencies: such as Form 5500 and reports
fiscal year 2020, 83 percent of investigations closed were civil cases.
triggered by certain plan decisions or
conditions EBSA’s enforcement framework is outlined in manuals, operating plans,
Fiduciary Responsibilities: Plan fiduciaries are and guidance materials that inform the civil investigation process. EBSA’s
required to discharge their duties solely in the publically available enforcement manual provides frameworks and tools
interest of participants and beneficiaries:
(1) for the exclusive purpose of providing
for investigation procedures. EBSA’s annual operating plan and related
benefits and defraying reasonable expenses guidance outline enforcement priorities for investigators and regional
of plan administration, office management. For example, EBSA’s operating plan and guidance
(2) with the care, skill, prudence, and recommend that regional offices focus on identifying whether plans keep
diligence under the circumstances then
prevailing of a prudent person acting in a like track of missing vested retirement plan participants, to facilitate
capacity and familiar with such matters would appropriate distribution of participants’ account balances. 13 For health
act,
(3) by diversifying investments to minimize the
risk of large losses, and
(4) in accordance with plan documents.
Additionally, among other requirements, plan
fiduciaries are generally prohibited from
engaging in certain transactions with the plan
or with a person related to plan management.
Source: Employee Benefits Security Administration (EBSA)
compliance information for retirement and health plans |
GAO-21-376
13Plans are expected to maintain adequate records and procedures for contacting
terminated participants with vested accrued retirement account benefits to ensure that the
participants who have reached normal retirement age receive the benefits to which they
are entitled.
Page 10 GAO-21-376 EBSA Enforcement
plans it instructs regional offices to focus on identifying inappropriate
medical treatment limitations and wrongful denial of services notices. 14
EBSA Voluntary Correction Programs EBSA’s investigations of retirement plans examine a wide range of
EBSA has two voluntary correction programs
financial transactions to determine whether the transactions violate the
that encourage fiduciaries and others to self- fiduciary responsibility requirements of ERISA; that is, a fiduciary must
correct Employee Retirement Income Security manage the plan’s assets prudently and in a participant’s best interest.
Act of 1974 (ERISA) violations by providing
incentives, such as relief from enforcement For example, investigators may examine due diligence used by the plan
actions and certain penalties. Plans self-report in the management of investments, or potential self-dealing (such as
or EBSA may identify plans through reviews
of information about plan operations, funding, using plan assets for their personal benefit). Investigations may also
and investments that employer-sponsored examine abandoned plans, which may have funds in trust but no active
retirement and health plans submit annually
on their Form 5500 or Form 5500 SF.
fiduciary, and a variety of issues concerning employee stock ownership
plans (ESOP), 15 among other compliance issues.
The Voluntary Fiduciary Correction Program
allows fiduciaries to self-correct certain
fiduciary violations under ERISA, including EBSA’s health plan investigations focus on enforcing federal health plan
delinquent participant contributions and
certain transactions that pose a conflict of
coverage and availability requirements and returning money to plans and
interest. Applicants must correct the violation participants affected by improper administrative practices or mishandling
and restore the plan to the condition it would of plan funds. According to EBSA guidance, investigations frequently
have been had the breach not occurred.
EBSA received over 1,300 filings in 2020 target financial solvency and fraud in multiple employer welfare
resulting in $12 million in recoveries. arrangements (MEWA), which allow employers to pool their resources to
The Delinquent Filer Voluntary Compliance fund their employees’ health benefits or to purchase group insurance. 16
Program allows plans that have failed to meet Arrangements that are insolvent, fraudulent, or poorly managed can leave
ERISA reporting requirements to file reports to
the agency, and pay reduced penalties. EBSA plan participants and beneficiaries untreated, uninsured, and with unpaid
received over 19,600 filings requesting medical bills. In fiscal year 2021, EBSA’s operating plan stated that the
assistance through this program in 2020.
agency planned to focus on health plans’ compliance with requirements
Source: Department of Labor, Employee Benefits Security
Administration (EBSA) fiscal year 2021 operating plan and for reimbursement rates for the treatment of mental health conditions or
agency fact sheets | GAO-21-376
substance abuse disorders (mental health parity), autism treatment
limitations, denials of claims for emergency services, and fees paid to
insurance companies and other service providers, among other things.
EBSA has authority under the Patient Protection and Affordable Care Act
to issue cease and desist orders to multiple employer welfare
14Unless otherwise indicated, references to the operating plan and operating plan
guidance describe information from the fiscal year 2021 operating plan and related
guidance.
15Employee stock ownership plans are defined contribution plans designed to invest
primarily in the stock of the sponsoring employer to provide retirement income to
employees. When an ESOP plan representative buys or sells plan stock the plan may not
pay more than, or sell for less than, the fair market value.
16Only multiple employer welfare agreements that constitute ERISA-covered welfare
benefit plans are subject to ERISA’s requirements governing benefit plans. However,
those operating or managing the arrangement may be subject to fiduciary responsibility
provisions if acting in that capacity.
Page 11 GAO-21-376 EBSA Enforcement
arrangements under certain circumstances. In addition, EBSA’s benefits
advisors and investigators can attempt to negotiate restoration of denied
healthcare benefits. However, according to agency officials, typically, only
participants are able to sue plans for the restoration of individual benefits.
In general, EBSA investigations follow five steps (see fig. 4).
Figure 4: Flowchart of the typical Five-Step EBSA Investigative Process, Data from Cases Opened in Fiscal Year 2017
Notes: Percentages do not add to 100 due to rounding.
EBSA investigations may take more than 1 year to complete. To ensure that the majority of
investigations had been closed, we chose to include data from fiscal year 2017.
a
Closed with monetary result, closed with non-monetary result, and closed without action categories
include investigations referred to the Department of Justice.
Step One: Case leads are Potential cases for formal compliance investigations are identified through
identified various sources.
• Benefits advisors. EBSA relies on its benefits advisors, who respond
to participant inquiries, to help restore benefits to participants
(monetary or non-monetary), without the need for formal investigation.
Page 12 GAO-21-376 EBSA Enforcement
Benefits advisors provide assistance to participants who inquire about
retirement benefits, such as delayed employer contributions, difficulty
locating previous employers to claim accrued benefits, or plan
eligibility. Participants may also inquire about health care benefits,
such as eligibility for health insurance after job loss, coverage of
preexisting conditions and denied health care claims.
In fiscal year 2020, benefits advisors responded to nearly 173,000
requests for assistance, 77 percent of which were from participants.
Agency officials told us the number of inquiries can fluctuate due to
economic conditions. For example, economic downturns can lead to
increases in questions related to benefits for separated employees,
such as in 2011, which includes the period following the Great
Recession. In fiscal year 2020, benefits advisors recovered nearly
$457 million for plan participants, which reflects “lost” retirement
benefits that benefits advisors located, as well as retirement and
health benefits that had been improperly denied (see fig. 5).
Figure 5: EBSA Benefits Advisor Inquiries and Recoveries, Fiscal Years 2011-2020
Similarly, benefits advisors provide technical assistance to plan
representatives seeking compliance guidance, such as interpreting
regulations. For example, when the Patient Protection and Affordable
Care Act was implemented, EBSA emphasized assisting, rather than
imposing penalties on, health plans they determined were working
diligently and in good faith to understand and comply with the new
Page 13 GAO-21-376 EBSA Enforcement
law. Benefits advisors are not empowered to interpret laws and
regulations, but can point the callers to EBSA-issued compliance
guidance or help them connect with EBSA officials responsible for
interpreting laws and regulations, according to EBSA guidance. 17 In
fiscal year 2020, about 11 percent of inquiries were from plan
representatives seeking technical assistance.
Through their efforts to resolve individual plan-level issues, benefits
advisors may identify fiduciary misconduct that needs to be further
investigated. For example, EBSA’s benefits advisor guidance provides
benefits advisors with a list of “red flags” that might indicate the matter
should be referred for investigation. For retirement issues, this
includes a pattern of delayed contributions. For health plans, the list of
red flags includes improper cost-sharing for or denial of health care
claims with the potential to affect a significant number of participants.
Benefits advisors may refer such cases to EBSA’s investigative staff
for further investigation. Over the past 10 years, the number of
investigations based on benefits advisor referrals has dropped, along
with the drop in the number of benefits advisor inquiries. Consistently,
during fiscal years 2011-2020, less than one-half of 1 percent of
benefits advisor inquiries led to open investigations. However,
according to EBSA officials, benefits advisor referrals represent about
one-third of all opened investigations and the monetary recoveries
from cases referred by benefits advisors has grown significantly (see
fig. 6). See step five below for more detail on recoveries.
17Compliance guidance for retirement and health plans is available on EBSA’s website.
https://www.dol.gov/agencies/ebsa/employers-and-advisers/small-business/compliance-as
sistance.
Page 14 GAO-21-376 EBSA Enforcement
Figure 6: Number of EBSA Investigations Opened through Benefits Advisor Referrals and Annual Recoveries from Benefits
Advisor Referred Cases Closed, Fiscal Years 2011-2020
• Regional offices. EBSA officials said investigators in the regional
offices may identify compliance issues by reviewing Form 5500 data.
Examples of potential compliance issues described in EBSA’s
enforcement manual include inadequate diversification of investments
or contributions to retirement plans not made in a timely fashion. 18
Investigators also track sources, such as bankruptcy filings, media
reports, private litigation, and information from industry data compilers
to identify potential violations for investigation.
• National office and other offices within the Department of Labor.
Investigators may receive referrals from EBSA’s Office of
Enforcement and the Office of the Chief Accountant, and from
sources in other divisions of DOL, such as Office of Inspector
General.
• Federal, state, and local agencies and other entities. EBSA
officials said they have reciprocal arrangements with federal, state,
and municipal government to share information, refer investigation
18DOL regulations generally require that employers deposit participant contributions as
soon as it is reasonably possible to separate them from the employer’s assets, but no later
than the 15th business day of the month following the month in which the participant
contribution amount are received by the employer or otherwise would have been payable
to the participant in cash. See 29 U.S.C. § 2510.3-102.
Page 15 GAO-21-376 EBSA Enforcement
leads, and in some cases, jointly pursue investigations. When other
enforcement agencies discover a possible ERISA violation, they may
forward the lead to EBSA. Arrangements with certain agencies are
formalized through memoranda of understanding. Regional offices
may also develop relationships with other federal, state, and municipal
enforcement agencies, including the Federal Bureau of Investigation
and local police, to receive referrals, according to regional office
officials we spoke with. For example, the U.S. Securities and
Exchange Commission may refer a retirement plan investment
advisor suspected of engaging in prohibited transactions—such as
transactions between a plan and plan fiduciaries that benefit the
fiduciaries rather than participants—to EBSA.
• Previous investigations. In the course of an investigation, the
investigator may identify evidence of unrelated violations or possible
criminal activities by plan fiduciaries and service providers and may
open a separate case, as appropriate (see fig. 7).
Figure 7: Sources of EBSA Investigations Closed in Fiscal Year 2020
Other leads include confidential source leads and non-benefits advisor referrals
a
Step Two: Case leads EBSA management and staff review case leads to determine if an
reviewed investigation should be opened, and if so, such cases are assigned to
investigative staff, according to agency officials. In most cases, EBSA
allows regional offices to decide how to staff investigations and which
investigations to pursue based on EBSA priorities. EBSA staff decide
whether to pursue an investigation based on the merits of the issue for
investigation, including the egregiousness of the allegation, whether a
correction has already been made, whether there are viable parties to
pursue for corrective action, and whether the plan is a repeat offender.
EBSA officials said that they prioritize potential investigations that
originate from participant inquiries, address national and regional
projects, and those that may result in large monetary recoveries or affect
large numbers of participants. Regional office managers and investigators
we spoke with agreed that the decision to pursue potential cases often
involved investigators, their supervisors, the regional directors and deputy
Page 16 GAO-21-376 EBSA Enforcement
regional directors, and at times, national office staff, including lawyers for
the Office of the Solicitor. Similarly, regional office managers assign case
leads to investigators. Regional office staff also noted that decisions
about how investigations are staffed include consideration of availability,
special expertise or training, and previous experience with similar issues
or industries.
Step Three: Cases developed Regional office officials we spoke with said they determined whether to
develop a case by asking investigators to perform an initial review of
available documentation to determine if potential case leads meet EBSA’s
enforcement priorities. These priorities include aligning with national or
regional projects and cases affecting a large numbers of participants and
beneficiaries or resulting in large monetary recoveries. In addition,
EBSA’s operating plan guidance notes that criteria for deciding which
investigations to pursue should reflect a balance of plan sizes and types.
The guidance further states that investigations of smaller plans are
primarily a means to assess the conduct of fiduciaries and service
providers to many plans. (see table 1).
Table 1: EBSA Investigator Case Development Activities
Activity Description
Collect financial reports Collects and reviews recently filed financial reports, including
the Form 5500 and any exemption applications pertaining to a
prohibited transaction.
Develop investigative Develops a plan for the investigative process, which include
plan allegations, investigative leads, basis for investigation under
the Employee Retirement Income Security Act of 1974, as
amended (ERISA), any elements of proof needed to establish
a violation, the scope of the proposed inquiry, planned
investigative activity, the records to be reviewed, and
interviews to be conducted. The plan is reviewed by the
investigator’s supervisor,
Contact plan Sends the plan representative a letter informing them of the
representative open investigation and requesting documentation. Generally,
EBSA investigators try to obtain documents voluntarily, but
they have subpoena authority to compel the submission of
documents and records and to compel individuals to appear
for interviews and testimony.
Page 17 GAO-21-376 EBSA Enforcement
Activity Description
Conduct site visits Meets with plan representative onsite or virtually to conduct
interviews and collect documents to help determine if there is
an ERISA violation, the extent of the violation, and any non-
monetary corrections required or monetary recoveries that are
due. Certain investigations, such as those involving fiduciary
compliance, complex investment strategies, or excessive fees
charged by service providers may require an analysis of the
plan’s assets and investments by EBSA staff with a financial
background or by contracted outside experts.
Source: The Employee Benefits Security Administration (EBSA) Enforcement Manual, updated December 2019 | GAO-21-376
Step Four: Compliance or According to agency officials, EBSA investigators work to encourage
referral plans to voluntarily comply with ERISA provisions whenever possible.
Investigators negotiate with plans to make necessary changes in their
administrative practices or to restore money to the plan or participants.
In cases where an agreement cannot be reached, investigators can refer
the case to the Office of the Solicitor in their regional office for civil
litigation. EBSA’s solicitors may decline to initiate litigation in cases where
the recoveries are too small to justify the expense of litigation. Since fiscal
year 2010, fewer than 10 percent of investigations were referred for civil
litigation and more than one-half of those resulted in litigation filed by the
Office of the Solicitor. 19 Other cases may be resolved through voluntary
compliance or settlements. EBSA officials told us that when investigators
discover violations not under their purview, they may refer them to the
appropriate federal or state agencies. 20
Criminal investigations are opened when investigators detect a “badge of
fraud,” such as lying or concealing information, and investigators may
consider referring the case for prosecution, according to EBSA officials.
Regional office managers and investigators we spoke with agreed that
19From fiscal years 2011 to 2020, EBSA referred a total of 1,784 cases for civil litigation
and the Office of the Solicitor filed 925 complaints in the court based on those referrals
(almost 52 percent).
20For example, IRS and the Pension Benefit Guaranty Corporation (PBGC) administer
other requirements applicable to benefit plans. Namely, IRS has responsibility for ensuring
that certain retirement plans meet applicable requirements to receive preferential tax
treatment. PBGC operates two separate insurance programs (for single-employer and
multiemployer defined benefit pension plans) monitors and works with underfunded
retirement plans to help prevent pension losses. In addition, certain types of benefit plans
are not covered by ERISA and thus not part of EBSA’s oversight authority. Such cases
may be referred to the appropriate federal enforcement agencies or the state insurance
regulators.
Page 18 GAO-21-376 EBSA Enforcement
the decision to refer cases to the Department of Justice for criminal
prosecution often involved investigators, their supervisors, regional
directors and deputy directors, and at times, national office staff, such as
lawyers in DOL’s Office of the Solicitor. The enforcement manual directs
investigators who detect potential violations to contact the appropriate
U.S. Attorney’s Office at the earliest possible stage of an investigation to
determine whether the office has interest in the case and the resources
available to prosecute. In fiscal year 2020, EBSA referred 186 criminal
cases to the U.S. Attorney’s Office, which accepted 122 cases—about 66
percent. 21 The U.S. Attorney’s Office may elect not to pursue a criminal
referral due to workload or other concerns with the case. When the U.S.
Attorney’s Office declines a case, the investigators may refer the case to
state or local prosecutors.
Step Five: Cases closed, Civil investigations are closed when, for example, the investigators
results recorded negotiate a resolution of the issues identified with the plan; litigation is
completed; or the case is referred to another enforcement agency,
according to EBSA officials. 22 Investigators record any results in their
case tracking database. In fiscal year 2020, regional office staff closed
1,181 civil investigations (see fig. 8).
21Criminal referrals may be accepted in a fiscal year other than when the cases were
referred.
22EBSA’s investigation protocols generally do not include a system for administrative
appeals outside the context of civil penalties. According to EBSA officials, ERISA neither
provides a system of administrative appeals of determinations of civil investigations. EBSA
officials said that the agency may agree to mediation or arbitration in settling compliance
issues and, should a case be brought in civil or criminal court, a defendant can seek to
appeal any judicial decisions.
Page 19 GAO-21-376 EBSA Enforcement
Figure 8: EBSA Civil Investigations Closed, Fiscal Years 2011 through 2020
a
Other cases include investigations of certain welfare benefit plans, such as life insurance and
disability insurance.
b
EBSA officials told us that a large portion of health care plans are fully insured and are primarily
under the authority of state insurance commissions.
Criminal investigations are closed when there are no violations found, the
U.S. Attorney’s Office declines to prosecute, or prosecution is completed.
In fiscal year 2020, regional office staff closed 230 criminal investigations.
That year, 70 individuals were indicted and 59 individuals entered guilty
pleas or were convicted. (see fig. 9)
Page 20 GAO-21-376 EBSA Enforcement
Figure 9: EBSA Criminal Investigations Closed, Fiscal Years 2011 through 2020
a
Other cases include investigations of certain welfare benefit plans, such as life insurance and
disability insurance.
b
EBSA officials told us that a large portion of health care plans are fully insured and are primarily
under the authority of state insurance commissions.
Investigators track and record outcomes for civil and criminal cases,
including plan and participant assets recovered and the rate at which
referrals to the Department of Justice are prosecuted. EBSA officials
noted that certain health plan outcomes are difficult to fully monetize.
EBSA guidance notes that outcomes for health plan investigations include
removing improper plan exclusions or limitations. As a result of its
compliance and enforcement activities in fiscal year 2020, EBSA
recovered over $3.1 billion in direct payments to plans and participants. 23
EBSA reported that 67 percent of civil cases resulted in monetary results
for plans or other corrective actions and 82 civil cases (7 percent) were
23The recoveries include plan assets restored, benefits paid to participants, and reversal of
prohibited transactions, such as transactions between a plan and plan fiduciaries that
benefit the fiduciaries rather than participants.
Page 21 GAO-21-376 EBSA Enforcement
referred to the DOL’s Office of the Solicitor for civil litigation. 24 (see fig.
10).
Figure 10: EBSA Cases Closed and Monetary Recoveries, Fiscal Years 2011
through 2020
Note: In 2013, EBSA began a strategy to focus on cases that would result in large monetary
recoveries for participants. In 2014, EBSA changed its method of counting recoveries to include only
money paid back to plans, participants, and beneficiaries.
24The Division of Plan Benefits Security, within DOL’s Office of the Solicitor, and regional
office solicitors litigate retirement, health and other employment-related benefits cases.
Page 22 GAO-21-376 EBSA Enforcement
EBSA Uses a Range
of Strategies to
Improve Investigative
Processes and Seeks
to Ensure
Enforcement Quality
through Training and
Oversight
EBSA’s Five Strategies EBSA’s operating plan noted that the agency directs its resources to
Prioritize Maximizing maximize positive outcomes for plans and participants. The operating
plan describes the strategies to achieve the goal, including (1) improving
Results for Participants
targeting techniques; (2) setting performance indicators to encourage
results for plan participants and acceptance of criminal cases by federal
prosecutors; (3) allocating resources to national enforcement projects,
evolving issues, and major cases; (4) using investigative time efficiently,
and (5) promoting cross-regional investigation to leverage resources.
Strategy One: Improving targeting techniques. To help identify plans for
investigation, EBSA developed several targeting strategies. In fiscal year
2016, EBSA formed a national targeting group made up of regional and
national office staff as part of an on-going effort to develop leads for
investigations, monitor results, and report to regional offices on the
effectiveness of targeting methods. EBSA continued these efforts in fiscal
year 2019 by creating a team to evaluate past targeting criteria for plans
at risk of investment conflicts, among other activities. In fiscal year 2020,
EBSA began publishing an annual report to document case development
and identify patterns to target investigations. The annual report is also a
way for EBSA to share these practices across the regions.
Strategy Two: Setting performance indicators to encourage results for
plan participants and acceptance of criminal cases by federal
prosecutors. Prior to 2013, EBSA focused its investigator performance
measure on cases closed, which incentivized pursuing simple cases.
Since 2013, it has refocused the performance measure on recovering
assets for participants, which has led to the pursuit of more complex and
difficult investigations. In a 2012 white paper, EBSA noted that
investigators should focus on “major cases” that could recover large
Page 23 GAO-21-376 EBSA Enforcement
amounts of plan assets. EBSA’s annual operating plan guidance reflects
the evolution in major cases and related changes to performance
measures since that time. This guidance includes the types of compliance
issues investigators should pursue, directions for steadily increasing the
amount of time regional offices spend on major cases, and the monetary
recoveries achieved per staff day. Major cases may include investigations
of service providers with many plans and plan participants or systemic
problems in the plan that may require significant asset management or
administrative reforms. 25 Total monetary recoveries for participants more
than doubled from fiscal year 2011 through 2020. The focus on major
cases, which began in 2013, accounts for much of that growth, with
nearly 80 percent of total recoveries from all sources coming from major
cases in 2020. According to EBSA officials, major cases are more
resource intensive; therefore, in that same period, the total number of
investigations that were closed dropped by more than 62 percent. (See
table 2 for major case recoveries from fiscal year 2016-2020).
Table 2: EBSA Major Case Staff Days and Recoveries, Fiscal Years 2016 through
2020
Major case
Major case recoveries Major case staff days recoveries per
Fiscal year during period during period staff day
2016 $276,799,800 17,357 $15,947
2017 $609,072,297 20,122 $30,269
2018 $1,055,858,668 16,772 $62,956
2019 $1,937,524,056 17,807 $108,807
2020 $2,491,694,236 18,418 $135,288
Source: Data provided by the Employee Benefits Security Administration (EBSA) | GAO-21-376
Note: Prior to 2016, EBSA did not separately track certain major case outcomes
Strategy Three: Efficiently using investigative time. From fiscal years
2011 through 2016, EBSA selected a random sample of between 179 and
313 retirement plans for investigation annually, tracked the progress of
25According to EBSA, significant asset management reforms may include divestment of
imprudent, undiversified or illiquid assets whether or not they have resulted in plan losses.
It may also include reallocation of investments to comply with investment guidelines, or
changes in investment guidelines to limit the plan’s risk of large losses. Significant
administrative reform may include requirements for service providers, such as financial
institutions to adopt practices to identify and correct abandoned plans, to restore
employee contributions not credited to the retirement account in a timely manner, properly
apply employer contributions, or change methodology for the reporting of plan asset
values (e.g. custodian obtaining fair values for hard to value assets).
Page 24 GAO-21-376 EBSA Enforcement
the investigations, and analyzed the results. A similar program selected
samples of 75 to 81 small health plans annually from fiscal years 2013
through 2015. In 2017, EBSA reported the results of both programs, and
found that about 60 percent of all the plans sampled each year failed to
comply with some aspect of ERISA.
According to EBSA, with the exception of those for employee stock
ownership plans, investigations of plans identified through EBSA’s
targeting methods were more likely to identify a violation than the
sampling study investigations. In addition, the agency determined that
violations identified in the study included what the agency characterized
as minor reporting or paper violations with little impact on plan
participants. EBSA concluded that the study’s data were meaningful in
analyzing trends, but did not provide a strong measure of whether the
benefit plan universe was in substantial compliance with all of ERISA’s
obligations. The agency further concluded that targeted investigations
were more successful and decided to continue to focus on specific
compliance issues and direct the agency’s resources to investigations
that will lead to the biggest impact—either in the amount of funds
recovered or in the number of plan participants affected. 26
To maximize resources, regional office officials may assign specialists
and individuals with technical expertise to investigative teams. In some
cases, these specialists act as leaders or supervisors for teams doing
relevant investigations, while in other cases they act as experts available
to all teams or as resources for other regional offices.
Strategy Four: Allocating resources to national enforcement projects,
and emerging issues. In its operating plan guidance, EBSA stated that it
establishes national enforcement projects by assessing current
enforcement activities, identifying recent enforcement trends, analyzing
industry activities and areas of noncompliance, and reviewing policy
considerations to identify areas of potential risk in the employee benefit
industry. Identifying national priorities also allows EBSA to shift its
resources to evolving issues. For example, the operating plan describes
new compliance responsibilities for plans and enforcement and regulatory
26In its 2007 report, GAO recommended that EBSA evaluate the extent to which it could
supplement its investigations with routine compliance examinations. See GAO-07-22.
Similarly, in 2019, GAO recommended that the agency analyze whether targeted reviews
alone are effective in ensuring compliance with the mental health and substance abuse
parity requirements for private, employer-sponsored group plans. See GAO-20-150.
Page 25 GAO-21-376 EBSA Enforcement
requirements in the Setting Every Community Up for Retirement
Enhancement Act of 2019 (SECURE). The SECURE Act amended
ERISA to establish a new type of multiple employer retirement plan called
a pooled employer plan, and granted EBSA the authority to issue
guidance to carry out the new provisions. 27 The operating plan further
stated that this and other requirements of the SECURE Act would add a
large new workload for the agency. In addition, the operating plan states
that EBSA has already begun shifting resources from other activities to
step up its efforts to assist and promote compliance among multiple
employer welfare arrangements. 28 See app. I for a list of national
enforcement projects.
Regional offices annually submit program operating plans with an
analysis of their region, including issues, plan types, industries, and
services specific to the region, according to EBSA officials. EBSA
guidance states that regions should develop cases around local issues
and take advantage of staff expertise in a particular area. EBSA guidance
further states that regional directors should assess current enforcement
activities, trends, and areas of noncompliance within the region’s
jurisdiction and ensure that risk assessment is an integral part of the
identification and implementation of new regional priorities. Including a
regional focus in developing investigation projects gives the regional
office ownership and discretion over their work, which helps in recruiting
and retaining regional staff, according to EBSA officials. Regional projects
also act as pilot programs for projects that may be implemented
nationally. For example, the national focus on retirement plans that have
failed to keep track of vested participants who separated from their
employer began as a regional office project. See app. II for a list of 2021
regional enforcement projects.
Strategy Five: Promoting cross-regional investigation to leverage
resources. EBSA has included cross-regional investigations as an
enforcement strategy since 2016. Such efforts leverage limited resources
and focus on corrections that affect service providers who operate in
27The SECURE Act amends ERISA to permit unrelated employers to join a new type of
multiple employer retirement plan (pooled employer plan) and requires that providers to
the pooled employer plan (pooled plan providers) register with DOL and comply with a
number of plan requirements. DOL regulations describe registration requirements for
pooled employer plans. See 29 C.F.R. § 2510.3-44.
28In its fiscal year 2020 operating plan, EBSA reported that the agency had been devoting
about 62 full-time employees to MEWA-related work on an annualized basis, including 48
full-time employees working directly on enforcement and participant assistance.
Page 26 GAO-21-376 EBSA Enforcement
multiple EBSA regions, according to EBSA’s operating guidance. EBSA
officials said that combining the expertise and resources of several
regions allows them to conduct large and complex investigations. EBSA
has found that health care issues, in particular, routinely cross regional
boundaries. In fiscal year 2020, EBSA opened 16 cross-regional
investigations.
EBSA Relied on Training, The EBSA national office is responsible for ensuring consistency in
Written Protocols, and enforcement efforts across regions. All enforcement staff receive the
same training and instructional information, according to regional officials.
Management Oversight to
In addition, officials noted that the national office reviews most work
Ensure the Quality of Its products. EBSA relies on training, written protocols, and management
Enforcement Efforts oversight to ensure the quality and consistency of its enforcement efforts.
Training EBSA officials said they provide new investigators and benefits advisors
with intensive new hire training. Investigators receive additional ongoing
national and regional office training to keep them up-to-date on skills and
relevant topics (see table 3).
Table 3: EBSA Investigator Training Activities
Training type Topics covered Frequency
New investigator
EBSA’s authority and plan compliance requirements under ERISAa First year hired
Fiduciary provisions and investigative techniques First year hired
Employee benefit plan accounting and financial analysis Second year hired
Criminal enforcement One-time
National office
Advanced issues and techniques for experienced investigators, including One-time
complex and detailed material not covered in other courses, such as financial
institutions, ESOPs, MEWAs, and health enforcement training
Competency training on basic fiduciary provisions, investigative techniques, One Time
benefits advisor techniques, employee benefit plan accounting and financial
analysis, criminal enforcement, advanced issues and techniques, and health
enforcement training
Ongoing enforcement issues, such as the Paul Wellstone and Pete Domenici Ongoing
Mental Health Parity and Addiction Equity Act of 2008
Emerging enforcement issues, such as new laws. For example, in fiscal year Ongoing
2020, investigators received training on the CARES Act and the Families First
Coronavirus Response Act COVID-19 testing provisions
Web-based training on specialized topics for health and financial cases Ongoing
Page 27 GAO-21-376 EBSA Enforcement
Training type Topics covered Frequency
Technology training on software products used by EBSA and commercial Ongoing
online research databases, such as Westlaw
Regional office
Training from supervisors and specialists to provide investigators with Ongoing
investigation skills and to stay current with emerging compliance issues
Mentorship program for new employees Ongoing
Specialized training
Criminal training courses at the Federal Law Enforcement Training Center Slots available on first
come basis
Source: Employee Benefits Security Administration (EBSA) officials and the fiscal year 2021 program operating plan guidance. | GAO-21-376
a
Benefits advisors also receive this training
According to operating plan guidance, new benefits advisors attend the
initial 2-week ERISA training with new investigators. Benefits advisors
also receive relevant training from the national and regional offices and
may attend some training targeted to investigators.
Written Protocols As discussed earlier, EBSA also publishes a detailed publicly available
enforcement manual with model letters, checklists, and other tools to aid
investigators in their work. In addition to its annual operating plan and
operating plan guidance, which lays out the strategic objective for
enforcement based on annual resources, EBSA outlines specific
procedures to accomplish that objective. Benefits advisors are provided
standard operating procedures with guidance on specific topics.
Management Oversight EBSA officials told us that the national and regional offices ensure the
quality of their enforcement efforts in several ways.
• Documentation review. National and regional office staff review
investigation documentation for selected cases. Agency officials told
us that for every case that results in monetary recoveries of over
$5,000 or significant non-monetary corrections, national office staff
review the closing letter, proof of a plan’s actions to correct non-
compliance, investigation report, and other supporting documents to
determine whether violations are properly cited. They also told us that
they check for adequate proof that corrections have been made, such
as restoration of plan assets and the completion of sufficient
administrative corrections, among other things. Regional offices may
also review investigation documentation. Team supervisors in the
regional office or the Associate Regional Director review all cases on
a quarterly basis before a case can be closed, according to officials at
two regional offices.
Page 28 GAO-21-376 EBSA Enforcement
• Peer review. EBSA national and regional offices work together to
conduct peer reviews of certain closed cases to identify widespread
issues that they may need to focus on and also to identify best
practices. Each region reviews a sample of files from another regional
office to look at specific areas of focus, compile results, and develop a
summary report, according to agency officials. A recent peer review
focused on investigations related to the Paul Wellstone and Pete
Domenici Mental Health Parity and Addiction Equity Act of 2008 to
assess industry trends and to determine if violations were fully
addressed. Other areas of focus have included civil and criminal
cases with a focus on accuracy of information in their investigation
tracking database. Problems identified in reviews can be both
substantive and procedural, and vary in importance. For example,
peer reviews revealed that EBSA investigations of employee stock
ownership plans are complex and require technical financial analysis
to determine if plans overpaid for their employer stock. In response,
EBSA provided training on the issues associated with employee stock
ownership plans and created a valuation team to assist investigators
working on those cases. In another instance, peer reviewers found
that interview notes were not consistently retained and EBSA
developed a policy to retain those notes.
• Performance review. Regional office officials said that investigators
receive ongoing feedback and formal mid-year and annual reviews
from their management. Supervisors review investigation documents
and discuss cases with investigators at least monthly, according to
regional office officials.
Regional office supervisory staff oversee benefits advisors.
Specifically, supervisors can listen in on benefits advisor phone calls
and sample the information benefits advisors collect and the data they
enter to verify that benefits advisors are following protocols and giving
accurate information. EBSA officials said the agency is recording
benefits advisor calls so that quality review does not need to take
place in real time. EBSA also contracted with a survey company to
conduct customer satisfaction surveys with participants who make
inquiries to benefits advisors, from 2017 through 2020.
Page 29 GAO-21-376 EBSA Enforcement
COVID-19 Presented
Immediate and Long-
Term Challenges for
Benefit Plan
Compliance and
EBSA Enforcement
EBSA Officials and Since the COVID-19 pandemic began in the U.S. in early 2020, EBSA
Industry Stakeholders and the benefit plans it oversees have faced many challenges in ensuring
ERISA compliance, according to knowledgeable stakeholders and agency
Identified Immediate
officials we interviewed. They described a number of issues related to
Challenges, Including COVID-19 that arose and were addressed quickly; for example, the
Investigation Delays, New abrupt shift to remote work. 29
Processes, and Closed
Courts
Industry Stakeholders Stakeholders identified three key challenges benefit plans faced, which
Identified Immediate were a lack of agency guidance, delayed communication, and new health
Challenges Regarding Benefit plan processes.
Plans
• Lack of guidance. The Families First Coronavirus Response Act
(FFCRA) was enacted March 18, and the CARES Act was enacted on
March 27, 2020. Due to the urgent need to facilitate a response to the
pandemic, after both acts went into effect, DOL issued guidance and
adopted temporary regulations to help implement the acts without
proposing them for public notice and comment. 30 Both acts include
29The knowledgeable industry stakeholders, from nine organizations, we interviewed
represented differing areas of expertise and interest groups, including retirement and
healthcare plans, service providers, and participants. We reviewed stakeholder
organization responses to identify a range of compliance challenges they had experienced
or expected to encounter. However, the information presented is not intended to represent
consensus given the varying perspectives of the stakeholders and the organizations they
represent. When we refer to stakeholders in the report, we are referring to the
organizations they represent.
30Twice a year federal agencies, including DOL, publish a list of regulations that they are
working on or will consider within the next 12 months. They typically open each proposed
regulation for comment for several weeks or more. In addition to allowing stakeholders to
provide input, the advance release of the regulatory agenda allows the parties affected to
track regulations as they go through the rulemaking process and to prepare for issuance
and compliance.
Page 30 GAO-21-376 EBSA Enforcement
provisions that amended ERISA or apply as if they were included in
ERISA, and are enforced by EBSA. An industry stakeholder we
interviewed expressed concerns about plans’ ability to remain
compliant as they interpreted and implemented COVID-related
provisions prior to receiving guidance. For example, both acts include
provisions requiring group health plans and individual health
insurance issuers to cover certain items and services related to
diagnostic testing of COVID-19 with no cost-sharing. One stakeholder
noted that although it was clear plans were required to cover COVID-
19 diagnostic testing with no cost-sharing, some testing was done for
other purposes, such as for employees returning to work or for contact
tracing, which they noted would not normally be covered by health
plans. 31 Subsequent guidance clarified that only testing for medically
appropriate diagnostic purposes was required to be covered by health
plans.
In the months following enactment of the FFCRA and CARES Acts,
DOL, HHS, and Treasury (the Departments) issued a series of FAQs
and guidance about FFCRA and CARES Act implementation (see
table 4).
Table 4: Selected DOL, HHS, IRS, and Treasury FAQs and Notices on FFCRA and CARES Act Implementation
Date Agency Title Content
April 11 and June DOL, HHS, and Treasury FAQs (for workers and employers) Provides guidance on the Families First
23, 2020 Coronavirus Response Act (FFCRA)
and CARES Act implementation and
other health coverage issues related to
COVID-19.
April 28, 2020 DOL COVID-19 FAQs for Participants and Helps employer-sponsored benefit plan
Beneficiaries participants and representatives
affected by the COVID-19 outbreak
understand their rights and
responsibilities under Title I of ERISA.
April 28, 2020 DOL, in coordination with Disaster Relief Notice 2020-01, Announces the extension of deadlines
HHS, Treasury, and IRS Guidance and Relief for Employee established in ERISA for furnishing
Benefit Plans Due to the COVID-19 certain notices or disclosures to
(Novel Coronavirus) Outbreak participants, if the plan acts in good
faith and furnishes the notices as soon
as practicable.
31FFCRA requires that plans cover certain diagnostic testing for COVID-19 without
imposing any cost-sharing requirements (including deductibles, copayments, and
coinsurance), prior authorization, or other medical management requirements on plan
participants.
Page 31 GAO-21-376 EBSA Enforcement
Date Agency Title Content
May 4, 2020 DOL and IRS Joint Notice, Extension of Certain Extends certain time frames for group
Timeframes for Employee Benefit health plans, disability and other welfare
Plans, Participants, and Beneficiaries plans, pension plans, and participants
Affected by the COVID-19 Outbreak and beneficiaries of these plans during
the COVID–19 National Emergency.
February 26, 2021 DOL, in coordination with Disaster Relief Notice 2021-01: Clarifies that the extension of the
HHS, Treasury, and IRS Guidance on Continuation of Relief for deadlines in Disaster Relief Notice
Employee Benefit Plans and Plan 2020-01 and the Joint Notice do not
Participants and Beneficiaries Due to extend beyond the earlier of one year
the COVID-19 (Novel Coronavirus) from the first eligible date for relief or 60
Outbreak days after the end of the National
Emergency.
Source: GAO Analysis of Department of Labor (DOL), Employee Benefits Security Administration (EBSA) Department of Health and Human Services (HHS), Internal Revenue Service (IRS), and
Department of Treasury (Treasury) documents | GAO-21-376
• Mail Delays. As early as April 2020, the United States Postal Service
warned of delivery delays due to COVID-19 and two of the leading
global delivery companies, United Parcel Service and FedEx,
suspended their service guarantees. According to one industry
stakeholder, benefit plans were concerned mail delays would result in
participants not receiving timely benefit checks. Other stakeholders
realized that closed print shops could result in missed deadlines for
mailing plan documents and benefit statements to participants, also
leading to noncompliance. Another stakeholder described difficulty in
providing documents requested by EBSA in situations when plans
could not access their mail or paper records due to stay-at-home
orders.
The CARES Act amended ERISA to give DOL the authority to
postpone certain ERISA filing deadlines for a period of up to 1 year in
the case of a public health emergency. As mentioned earlier, Disaster
Relief Notice 2020-01 announced the extension of certain timeframes
for employer-sponsored benefits plans. Further, the notice states that
plans may use electronic means to communicate with participants
who would reasonably have access to electronic means, such as
email and text messages. 32
• New health plan processes. The Patient Protection and Affordable
Care Act requires group health plans to notify participants not later
32On May 27, 2020, EBSA issued a rule, Default Electronic Disclosure by Employee
Pension Benefit Plans under ERISA that adopted a new, additional safe harbor for plan
administrators to use electronic media, as a default, to furnish information to participants
of retirement plans subject to ERISA, effective July 27, 2020. The rule does not apply to
health plans.
Page 32 GAO-21-376 EBSA Enforcement
than 60 days prior to implementing a material modification of the
terms of the plan or coverage, and generally prohibits health
insurance issuers from modifying insurance policies mid-year. 33
According to one stakeholder, some health plans responded to the
pandemic by quickly increasing telehealth offerings, which they said
initially placed them at risk of violating ERISA by expanding telehealth
services out of cycle and without notifying participants in advance.
The FAQs issued in April 2020 clarified that plans may increase the
availability of telehealth and remote care services by adding benefits,
or reducing or eliminating cost-sharing, without prior notification of
such material modifications and without regard to restrictions on mid-
year coverage changes.
A stakeholder described a challenge related to ensuring appropriate
coverage of COVID-19 testing. In order for health plans to ensure they
are only covering testing for diagnostic purposes and not for
employment or contact tracing purposes, plans may need to add a
code to their billing system to indicate the reason for the test. The
stakeholder stated that although health plans were making the
necessary coding changes, those changes were not consistently
applied. When health plans’ coding changes are inconsistently
applied, it could result in differences in payment for COVID-19 testing.
Agency Officials Identified In some cases, EBSA officials raised the same issues as industry
Immediate Challenges for stakeholders, such as the challenge of adapting to remote work. EBSA
EBSA Enforcement officials also described some unique challenges, including delays in their
investigations, modifications to investigative processes, and closed
courts.
• Delayed investigations. Agency officials described several factors
affecting investigation timeframes. The main challenge was delays in
receiving data and documents from plans that affected all cases,
especially when requested materials were not available electronically
and offices were closed. A particular challenge cited by one regional
office official was delays in receiving health claims data for
investigation. Claims processing came to a halt as health plans added
new codes to their systems and, when plans returned to processing
33ERISA requires plan administrators to provide participants with information about their
retirement and health benefits including plan rules, financial information, and the operation
and management of the plan. If there are changes to what the plan provides or how it
operates, participants must be informed of those material modifications. The April 2020
FAQs stated that HHS, DOL, and Treasury will not take enforcement action against a plan
that changes the benefits or cost-sharing structure of its plans mid-year to provide
increased coverage related to the diagnosis or treatment of COVID-19.
Page 33 GAO-21-376 EBSA Enforcement
claims, there were significant delays due to plan staff not being in their
offices, coupled with restrictions on sending confidential information
from outside their facilities.
• Modified investigation processes. EBSA investigators may conduct
some of their audit work, including document review and interviews,
onsite. When we spoke with EBSA national office officials in
September 2020, investigators were conducting all audits virtually
because EBSA’s entire staff was teleworking, although one regional
office had begun limited onsite interviews. Temporary closures and
reduced operations of many businesses impaired investigators’ ability
to complete critical interviews and delayed EBSA’s pursuit of actions
to correct non-compliance.
EBSA also added a new component to all civil health investigations.
Investigators began to review claims data to verify compliance with
FFCRA and CARES Act provisions, for example, ensuring COVID-19
testing was covered without cost-sharing by the patient.
• Closed courts. Beginning in March 2020, districts across the U.S.
closed federal courthouses and a growing number of courts switched
to conducting all or most proceedings through conference calls and
video conferences. In the following months, some districts suspended
grand juries. Several EBSA officials said that closed courts and the
inability to convene grand juries initially slowed or stalled criminal
court cases. However, by September, agency officials told us that
virtual hearings were more frequent, courts were resuming postponed
trials, and the Department of Justice had achieved convictions and
managed appeals of EBSA-referred cases in some regions.
• Increased outreach. EBSA’s benefits advisors conduct education
and outreach events for workers, employers, plan representatives,
and members of Congress. Since the beginning of the pandemic,
EBSA dramatically increased the number of dislocated worker events
beyond its target for fiscal year 2020. These events are designed to
educate employees facing job loss about their rights under the law.
According to EBSA, between January 1 and November 15, 2020,
EBSA held 3,162 rapid response sessions for dislocated workers. 34.
EBSA also reported increasing the number of employer-oriented
COBRA compliance webinars, from 10 webinars in 2019 to 52
between January 1 and November 15, 2020. Officials said they expect
to continue offering more webinars if job losses increase.
34These events took place virtually or by conference call. In comparison, EBSA conducted
945 dislocated worker events in 2019, almost all in person.
Page 34 GAO-21-376 EBSA Enforcement
EBSA Officials and Stakeholders and agency officials we interviewed described potential
Industry Stakeholders long-term challenges due to the pandemic.
Anticipate Long-Term
Challenges, Including
Locating Participants,
Economic Effects, and
Changes to Health
Coverage
Industry Stakeholders Challenges stakeholders raised included issues directly resulting from
Identified Long-Term COVID-19 or related legislation and other issues, such as difficulty
Challenges for Benefit Plans locating individuals who are entitled to retirement benefits (“missing
Identified by participants”) that existed prior to the pandemic and were expected to
worsen.
• Reporting deadlines. Some stakeholders we spoke with described
EBSA as accommodating and found the guidance regarding
compliance with FFCRA and CARES Act requirements to be helpful.
Stakeholders also told us plans had taken advantage of deadline
extensions and other relief. However, the same stakeholders said that
given the burden and uncertainties caused by the pandemic, plans
would appreciate further extension of reporting deadlines and greater
flexibility regarding plan compliance and plans’ responsiveness to
request for documentation related to investigations.
• Missing participants. Retirement plan administrators have an
obligation to keep accurate and up-to-date records on plan
participants and take appropriate actions to find missing former
employees, so the plan can pay promised benefits when they come
due. EBSA officials told us that many missing participants are not
aware of their benefits and, without the plan’s diligent efforts, may
never receive their benefits.
Several stakeholders mentioned the challenge of locating missing
participants, which existed prior to COVID-19, and their desire for
Page 35 GAO-21-376 EBSA Enforcement
additional guidance about the steps plans must take to locate them. 35
These stakeholders said they expected the increase in job loss due to
the pandemic would lead to more missing participants and would
make finding them even more difficult. 36
• Economic effect. COVID-19 may exacerbate the problem of
inadequate retirement savings if employers or employees reduce
contributions, or if employees take a loan or early distribution from
their account. 37 Starting in March 2020, some employers reduced,
delayed, or suspended their retirement plan contributions to reduce
costs. At the same time, the CARES Act provided relief for retirement
plan participants in the form of enhanced access to plan distributions
and plan loans. 38 Based on experience during the economic downturn
of 2007 through 2009, employees may also decrease contributions to
35In a January 2018 report, GAO recommended that the Secretary of Labor issue
guidance on sponsors’ obligations under ERISA to prevent, search for, and pay costs
associated with locating missing participants. See GAO, Workplace Retirement Accounts:
Better Guidance and Information Could Help Plan Participants at Home and Abroad
Manage Their Retirement Savings, GAO-18-19 (Washington, D.C.: Jan. 31, 2018). On
January 12, 2021, DOL released guidance documents on missing participants, including
recommended search, notice, and record retention practices for plans.
36Job loss may also result in relocation. A Pew Research survey conducted in early June
2020 found that 22 percent of U.S. adults moved due to the pandemic or knew someone
who did. Among those who relocated due to the pandemic, 8 percent said the most
important reason for their relocation was job loss.
37GAO has reported on the potential consequences of retirement plan participants tapping
into their accrued savings before retirement under certain circumstances, which can result
in a permanent loss of retirement savings. See GAO, 401(k) Plans: Policy Changes Could
Reduce the Long-term Effects of Leakage on Workers’ Retirement Savings, GAO-09-715
(Washington, D.C.; Aug. 28, 2009) and GAO, Retirement Savings: Additional Data and
Analysis Could Provide Insight into Early Withdrawals, GAO-19-179 (Washington, D.C.;
Mar. 28, 2019).
38The CARES Act temporarily allowed for certain coronavirus-related withdrawals from
retirement accounts and waived the additional 10 percent tax for early withdrawals from
retirement accounts for certain coronavirus-related withdrawals by individuals affected by
COVID-19. See Pub. L. No. 116-136, § 2202(a), 134 Stat. at 340-42. In addition, the Act
modified loan rules for defined contribution plans by increasing the maximum loan balance
allowed for new loans (taken between March 27 and 180 days thereafter) and extending
the due date for new or existing plan loan payments until December 31, 2020, by one
year. See Pub. L. No. 116-136, § 2202(b), 134 Stat. at 342. It is, however, optional for
employers to choose to amend their plans to adopt the early withdrawal and modified loan
rules of the CARES Act. Pre-retirement withdrawals of retirement savings could potentially
affect a participant’s retirement security in the form of future reduced defined contribution
pension balances.
Page 36 GAO-21-376 EBSA Enforcement
their retirement accounts. 39 Stakeholders we spoke with described
concerns about future financial consequences for retirement plans,
such as the effect of lower market returns on pension payment
obligations, retirement plan matches, and their benefits obligations.
Similarly, stakeholders described potential challenges for health plans
such as difficulties paying health claims due to reduced cash flow.
Compounding the challenge for health plans, stakeholders anticipate
a surge in health care claims when participants seek care or treatment
they delayed during the pandemic.
• New health coverage extensions. On May 4, 2020, IRS and EBSA
issued a joint notice that extended deadlines affecting certain benefit
plans, including those related to COBRA coverage, special enrollment
periods, and benefit claims and appeals. The joint notice extends
several time frames until 60 days after the announcement of the end
of the national emergency, including (1) the period during which a
qualifying individual can elect COBRA continuation coverage, (2) the
date for making COBRA premium payments, and (3) the date to file a
benefit claim or appeal a denied claim. 40 In February 2021, DOL, in
coordination with HHS, Treasury, and IRS, issued a joint notice
clarifying that the extensions would last until 1 year from the date
participants were first eligible for relief or 60 days after the announced
end of the National Emergency, whichever comes first.
According to some stakeholders, health plans and employers
expressed concerns about allowing separated employees to enroll in
COBRA at any time during the period of extension and the uncertainty
regarding how long extensions might last. Although once participants
enroll in COBRA they would generally have to pay back premiums 41,
39According to an April 8, 2020 article from the Urban Institute, during the Great
Recession, about 4 in 10 employees reduced their 401(k) contribution by at least 39
percent. Richard W. Johnson, Seven Ways the COVID-19 Pandemic Could Undermine
Retirement Security (Washington, D.C.: Urban Institute, 2020).
40COBRA continuation coverage laws are administered by several agencies. The
Departments of Labor and the Treasury have jurisdiction over private-sector group health
plans. The Department of Health and Human Services administers the continuation
coverage law as it applies to state and local governmental health plans. DOL’s interpretive
responsibility for COBRA is limited to the disclosure and notification requirements of
COBRA. IRS, within the Department of the Treasury, has issued regulations on COBRA
provisions relating to eligibility, coverage, and payment. Both the Departments of Labor
and Treasury share jurisdiction for enforcement of these provisions.
41The American Rescue Plan Act of 2021 provides for premium assistance for COBRA
continuation coverage for eligible individuals through September 30, 2021. See Pub. L.
No. 117-2, § 9501(a), 135 Stat. 4, 127-28.
Page 37 GAO-21-376 EBSA Enforcement
according to one stakeholder, the health plan would also have to
cover the cost of any care that occurred since the employee’s loss of
employer-sponsored coverage. As a consequence, because COBRA
coverage is often an expensive option, enrollment may only be
beneficial to those most in need of medical care, according to one
stakeholder. The challenge for health plans is conducting the
necessary risk assessment to price their products due to the
uncertainty about when or if a given separated employee would
choose COBRA enrollment, according to the same stakeholder. The
challenge for employers is potentially higher health plan premiums.
Agency Officials Identified EBSA officials described a number of potential long-term challenges due
Long-Term Challenges for to COVID-19. One challenge relates to changes in EBSA’s typical
EBSA Enforcement operations—limited travel—and two challenges may require greater
outreach and enforcement actions—businesses failures and fraud.
Limited travel. According to EBSA officials, plan personnel, service
providers, and others involved in investigations prefer that any
interviews during the course of a criminal investigation be conducted
in-person so that they have their legal counsel at their side. Travel
restrictions due to COVID-19 slowed down investigation progress for
some of these high-stakes cases.
Business failures. EBSA officials said that due to many businesses
failing, there could be a number of challenges related to benefit plans.
• Abandoned plans. When a business is in financial distress or
bankruptcy, participants’ retirement benefits may be at risk if the
employer sponsoring the plan abandons it. Beginning in fiscal year
2018, EBSA introduced a national enforcement project called
Protecting Benefits Distribution, designed to ensure that
participant retirement benefits from abandoned plans are
protected and expeditiously distributed to avoid losses. 42 EBSA
expected to see a significant increase in distressed plans due to
the pandemic.
42According to EBSA officials, in 2018 the agency introduced the Protecting Benefits
Distribution national project to help ensure participants’ benefits are protected when a
business is in financial distress or files bankruptcy. Through this project, EBSA takes
steps to assess whether plan contributions have been paid to the plans’ trust, advise all
affected plans of the bankruptcy filing, address unpaid health plan claims, and provide
assistance in filing proofs of claim to protect the plans, the participants, and the
beneficiaries, according to EBSA officials. EBSA officials also said that the agency takes
action to help ensure abandoned plans are properly administered or expeditiously
dissolved. In addition, EBSA confirms that service providers are not charging abandoned
plans unreasonable fees and draining the remaining participants’ accounts.
Page 38 GAO-21-376 EBSA Enforcement
• More “missing” participants. As mentioned by industry experts, an
increase in job loss may lead to an increase in missing retirement
plan participants. In addition, failing businesses may struggle to
keep updated records for participants vested in company
retirement plans. EBSA officials told us that the agency focuses
on the participants who may face financial hardship if they don’t
receive their promised retirement benefits on time and without
excessive fees, especially during economic downturns. As a
result, the increase in missing participants may lead to a greater
need for related enforcement investigations.
• MEWA solvency. In fiscal years 2018 and 2019, EBSA reported
investigating a number of large failed multiple employer welfare
arrangements with substantial unpaid claims, prompting EBSA to
start a MEWA Solvency Project in fiscal year 2019. The project is
designed to proactively identify insolvent plans to either
rehabilitate them or dissolve them; pursue potential instances of
criminal fraud; and protect participants from being left untreated,
uninsured, and burdened with large unpaid medical bills.
According to EBSA staff, current economic conditions resulting
from the pandemic may cause some employers participating in
such an arrangement to drop out, making it difficult to get claims
paid.
Fraud. If more firms become insolvent and economic problems
worsen, EBSA officials said they expect to see an uptick in certain
categories of fraud. One official described the possibility that a plan
representative might use money that should be placed in retirement
accounts to instead pay bills, which is illegal. As EBSA reviews health
care claims for compliance with CARES Act and FFCRA provisions,
officials said they anticipate finding fraud, such as false claims for
nonexistent services, and non-compliance, such as nonpayment of
claims. EBSA also expects to continue to participate in COVID-19
health fraud task forces, that have identified several fraud schemes
related to COVID-19 testing.
We provided a draft of this report to the Department of Labor (DOL) for
Agency Comments review and comment. DOL provided technical comments, which were
incorporated as appropriate.
Page 39 GAO-21-376 EBSA Enforcement
We are sending copies of this report to the appropriate congressional
committees, the Secretary of the Department of Labor, and other
interested parties. In addition, the report is available at no charge on the
GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact
me at (202) 512-2660 or NguyenTT@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made key contributions to this
report are listed in appendix IV.
Tranchau (Kris) T. Nguyen,
Director
Education, Workforce, and Income Security
Page 40 GAO-21-376 EBSA Enforcement
List of Addressees
The Honorable Patrick Leahy
Chairman
The Honorable Richard Shelby
Vice Chairman
Committee on Appropriations
United States Senate
The Honorable Ron Wyden
Chairman
The Honorable Mike Crapo
Republican Leader
Committee on Finance
United States Senate
The Honorable Patty Murray
Chair
The Honorable Richard Burr
Republican Leader
Committee on Health, Education, Labor, and Pensions
United States Senate
The Honorable Gary C. Peters
Chairman
The Honorable Rob Portman
Republican Leader
Committee on Homeland Security and Governmental Affairs
United States Senate
The Honorable Rosa DeLauro
Chairwoman
The Honorable Kay Granger
Republican Leader
Committee on Appropriations
House of Representatives
The Honorable Robert C. “Bobby” Scott
Chairman
The Honorable Virginia Foxx
Republican Leader
Committee on Education and Labor
House of Representatives
Page 41 GAO-21-376 EBSA Enforcement
The Honorable Frank Pallone, Jr.
Chairman
The Honorable Cathy McMorris Rodgers
Republican Leader
Committee on Energy and Commerce
House of Representatives
The Honorable Bennie G. Thompson
Chairman
The Honorable John Katko
Republican Leader
Committee on Homeland Security
House of Representatives
The Honorable Carolyn B. Maloney
Chairwoman
The Honorable James Comer
Republican Leader
Committee on Oversight and Reform
House of Representatives
The Honorable Richard E. Neal
Chairman
The Honorable Kevin Brady
Republican Leader
Committee on Ways and Means
House of Representatives
The Honorable Mark DeSaulnier
Chairman
Subcommittee on Higher Education and Workforce Investment
Committee on Education and Labor
House of Representatives
The Honorable Frederica Wilson
House of Representatives
Page 42 GAO-21-376 EBSA Enforcement
Appendix I: Employee Benefits Security Appendix I: Employee Benefits Security
Administration (EBSA) National Projects,
Administration (EBSA) National Projects,
Fiscal Years 2011 through 2021
Fiscal Years 2011 through 2021
EBSA establishes national projects annually to target widespread benefit
plan problems that officials have identified as causing the greatest
hardship for the largest number of participants. Regional office officials
are expected to place particular investigative emphasis on national
projects. Between fiscal years 2011 and 2021, four areas have remained
continuous national projects for EBSA: (1) contributory plan crimes, (2)
employee stock ownership plans, (3) plan investment conflicts, and (4)
protecting benefits distributions. Over the past 10 years, EBSA has also
conducted a series of health-related national projects focused on health
fraud and multiple employer welfare arrangements, health benefits
security, and, most recently, various health enforcement initiatives. In
fiscal years 2018 through 2021, the health-related national initiatives
include MEWA financial solvency and fraud, the Paul Wellstone and Pete
Domenici Mental Health Parity Addiction Equity Act of 2008, emergency
services, and health service provider self-dealing. Brief descriptions of
each project are included in the table below.
Table 5: EBSA National Projects, Fiscal Years 2011 through 2021
Project Description 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Contributory plan Pursue criminal ● ● ● ● ● ● ● ● ● ● ●
crimes prosecution of those
who commit crimes
involving employee
contributions to
retirement and health
plans
Employee stock Ensure that plan ● ● ● ● ● ● ● ● ● ● ●
ownership plans fiduciaries buy and
sell plan sponsor
stock at fair market
value; avoid conflicts
of interest; and
monitor for corporate
waste and
malfeasance
Plan investment Investigate issues ● ● ● ● ● ● ● ● ● ● ●
conflicts related to 1) fiduciary
service provider
compensation and 2)
conflicts of interest in
relation to plan asset
vehicles, receipt of
improper or
undisclosed
compensation, and
fiduciary due
diligencea
Page 43 GAO-21-376 EBSA Enforcement
Appendix I: Employee Benefits Security
Administration (EBSA) National Projects,
Fiscal Years 2011 through 2021
Project Description 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021
Protecting benefits Protect participants’ ● ● ● ● ● ● ● ● ● ● ●
distributions retirement benefits
and ensure they
receive benefits
expeditiously to avoid
losses resulting from
fiduciaries’ failure to
properly manage the
assets or from the
assets’ abandonment
Health fraud/ Address the issue of ● ○ ○ ○ ○ ○ ○ ○ ○ ○ ○
multiple employer health fraud
welfare recidivism and
arrangements MEWA financial
(MEWA) insolvency
Health benefits Investigate proper ○ ● ● ● ● ● ● ○ ○ ○ ○
security plan administration
and claims
payments,
undisclosed fees,
and compliance with
claims procedure
rules and health care
laws under Part 7 of
Title I of ERISAb
Health Emphasize ○ ○ ○ ○ ○ ○ ○ ● ● ● ●
enforcement investigations on
initiatives MEWA financial
solvency and fraud,
mental health parity,
emergency services,
and service provider
self-dealingc
Legend: ●= area of focus for the fiscal year; ○= not an area of focus for the fiscal year
Source: GAO analysis of Employee Benefits Security Administration (EBSA) documents | GAO-21-376
a
Fiduciary due diligence is the establishment of a process that helps protect the plan and participants.
b
Part 7 of Title I of the Employee Retirement Income Security Act of 1974, as amended, (ERISA)
provides protections for participants and beneficiaries of group health plans and health insurance
coverage offered in connection with group health plans.
c
Self-dealing occurs when fiduciaries deal with plan assets for their own self-interest, among other
things.
Page 44 GAO-21-376 EBSA Enforcement
Appendix II: Employee Benefits Security Appendix II: Employee Benefits Security
Administration (EBSA) Regional Projects,
Administration (EBSA) Regional Projects,
Fiscal Year 2021
Fiscal Year 2021
EBSA regional offices develop projects to address regional issues,
industries, and services. Each year, a prior regional project may be
continued or discontinued, and new projects may be proposed. Regional
projects also act as pilots for potential expansion into a national project.
Table 6: EBSA Regional Projects, Fiscal Year 2021
Regional office Project name Description
Atlanta None The Atlanta Regional Office is in a state of transition in fiscal year 2021 as
it posts and fills the open Associate Regional Director position. Due to the
transition, it does not have a 2021 regional project and is focusing
investigative efforts on national projects; multiple employer welfare
arrangements; and plan investment conflicts.
Boston Government contractor projecta Investigate pension and health benefit plans established by government
contractors for the benefit of workers on government-funded construction
projects to ensure that (1) the plan fiduciaries are taking action to collect
all “fringe benefit” contributions owed to the plan, and (2) the plans
operate in a fashion that actually benefits the participants rather than the
service providers whose fees are paid from plan assets.
Nutritional counseling initiative Focus on self-funded plans whose benefits wrongfully exclude or limit
coverage for nutritional counseling for the treatment of behavioral health
conditions. Evaluate the plans’ compliance with the applicable provisions
of the Paul Wellstone and Pete Domenici Mental Health Parity and
Addiction Equity Act of 2008 (MHPAEA), specifically requirements for
non-quantitative treatment limitationsb applicable to mental health or
substance use disorder benefits.
Taft-Hartley medication treatment Evaluate health plans’ and service providers’ compliance with MHPAEA
assistance initiativec by focusing on self-funded Taft-Hartley plans whose benefits exclude or
restrict treatments for opioid use disorder, including FDA-approved
medication assisted treatments.
Cincinnati Plan sponsor compensation Identify plan sponsors that are wrongfully receiving compensation from
initiative their own plan(s), paid to either the plan sponsor, its employees, or
affiliates.
Chicago Collectively-bargained plans Review imprudent or conflicted investment products and strategies,
initiative service provider selection and monitoring, and fees charged by
multiemployer plan service providers. Also review cost allocation, trustee
expenses, and leases, focusing on large plans that have not been
investigated recently, or at all.
Dallas At-risk midsize plans project Focus on mid-size pension plans (those with 100-500 participants) that
are holding investments that have historically created violations due to
fiduciaries unwittingly engaging in a prohibited transaction or by being
imprudent. Where possible, focus on plans that have fiduciary investment
control of pooled assets, such as profit sharing plans, and aim to open
cases that meet multiple at-risk areas.
Kansas City Group life insurance initiative Review group life insurance for compliance with the Employee Retirement
Income Security Act of 1974, as amended, (ERISA), with a specific focus
on premiums wrongfully retained by life insurance carriers on policies that
were never active due to Evidence of Insurability requirements.
Page 45 GAO-21-376 EBSA Enforcement
Appendix II: Employee Benefits Security
Administration (EBSA) Regional Projects,
Fiscal Year 2021
Regional office Project name Description
Plan sponsor investment incentive Investigate the alternative investments portfolios of large defined benefit
project plans and master trusts,d including fiduciary due diligence; investment
monitoring; valuation; management, performance, and other fees; and
conflicts of interest.
Collective investment fund (CIF) Focus on CIFs, which are tax-exempt, pooled investment funds
project maintained by a bank or trust company. Examines potential issues such
as excessive operating expenses; imprudent investments; conflicts of
interest in securities transactions; and accounting or investment
transaction irregularities.
Opioid Parity Analysis project Focus on disparity in benefits available for mental health and substance
use disorder conditions, such as opioid addiction, compared to medical
and surgery benefits. Examine any barriers to treatment that impede
ability of participants and beneficiaries to overcome addiction.
Los Angeles Prototype plan review project Review publicly available prototypes of fully-insured health plans
marketed to large and small group health plans in an effort to obtain
global correction of ERISA non-compliance. Reviews include evidences of
coverage, certificates of coverage, group agreements, and summaries of
benefits.
New York Qualified professional asset Target investment managers acting as a QPAM, including affiliates and
manager (QPAM) criminal more than 5 percent owners, who have unwittingly acquired an entity or
convictione hired an individual who has been convicted or released from prison as a
result of certain felonies involving the abuse or misuse of plans and their
assets within the last 10 years.
Stop filer project Identify plan fiduciaries who have stopped filing the required annual
report, which can suggest a broader pattern of mismanagement or an
intentional effort to conceal wrongdoing.
Philadelphia Network accuracy and adequacy Test the accuracy and adequacy of networks for mental health providers
for mental health and other areas and other providers offered by health plans to ensure compliance with
project MHPAEA rules on non-quantitative treatment limitations as well as to
ensure that provider directories offered by plans are accurate. Seek to
ensure that the mental health benefits and other benefits advertised to
participants in their plan documents accurately reflect the availability of
those benefits.
Federal facility contractors project Focus on companies or unions that provide ERISA-covered benefits to
contractors, such as security guards or janitors, at federal facilities. The
objective is to protect the benefits of these workers by ensuring that
promised retirement and health benefits were provided in accordance with
ERISA and the documents governing the plans.
San Francisco None In place of a regional project, the San Francisco Regional Office is testing
targeting strategies and tracking the results. If a strategy shows a
significant probability of detecting ERISA violations and a significant
number of targets, the strategy will be developed into a future regional
initiative. In addition, the office is leading or participating in more cross-
regional cases.
Source: GAO analysis of Employee Benefits Security Administration (EBSA) documents. I GAO-21-376
a
EBSA refers to this as the Prevailing wage project.
b
Non-quantitative treatment limitations are non-numerical limits on the scope or duration of benefits
for services and treatment provided under a plan.
Page 46 GAO-21-376 EBSA Enforcement
Appendix II: Employee Benefits Security
Administration (EBSA) Regional Projects,
Fiscal Year 2021
c
A Taft-Hartley plan (more commonly known as a multiemployer plan) is a collectively bargained
pension plan maintained by multiple employers, usually within the same or related industries, and a
labor union.
d
A master trust is a single trust for multiple plans sponsored by one employer.
e
Prohibited Transaction Exemption 1984-14 allows various parties who are related to plans to engage
in transactions involving plan assets if, among other conditions, the assets are managed by qualified
professional asset managers that are independent of the parties in interest and meet specified
financial standards. See 75 Fed. Reg. 38,837 (July 6, 2010).
Page 47 GAO-21-376 EBSA Enforcement
Appendix III: Top 10 Employee Retirement Appendix III: Top 10 Employee Retirement
Income Security Act of 1974 (ERISA) Violations
Income Security Act of 1974 (ERISA)
Identified in Investigations
Violations Identified in Investigations
EBSA regional offices conduct investigations of retirement and health
plans to detect and correct violations of Title I of ERISA and related
criminal laws. EBSA investigators identified 4,273 violations in the 1,411
investigations closed in fiscal year 2020. This included 3,776 retirement
plan violations from 1,056 closed investigations and 377 health plan
violations from 288 closed investigations. In fiscal year 2020, EBSA also
closed 67 investigations of other plans that identified 120 violations. The
ten most frequent violation categories account for almost 97 percent of all
violations. A single investigation may result in multiple violations.
Table 7: 10 Most Common ERISA Violation Categories Found in EBSA Investigations Closed, Fiscal Year 2020
Number Number
identified in identified in Number
Violated retirement health care identified in
provision Description cases cases other casesa
1 Fiduciary Plan fiduciaries shall discharge their duties solely in the 869 78 30
imprudence (29 interest of plan participants and beneficiaries and with the
U.S.C. § care, skill, prudence, and diligence
1104(a)(1)(B))
2 Exclusive Plan fiduciaries shall discharge their duties solely in the 793 58 24
purpose (29 interest of the plan participants and beneficiaries and for the
U.S.C. § exclusive purpose of providing benefits to participants and
1104(a)(1)(A)) their beneficiaries and defraying reasonable expenses of
plan administration
3 Fiduciary self- Plan fiduciaries shall not deal with the assets of the plan in 543 55 24
dealing (29 their own interest or for their own account, among other
U.S.C. § things
1106(b)(1))
4 Prohibited Plan fiduciaries shall not cause the plan to engage in a 457 42 16
transactions transaction if that transaction constitutes, among other
with a party in things, a direct or indirect transfer to, or use by or for the
interest (29 benefit of, a party in interest, of any assets of the plan
U.S.C.
§ 1106(a))
5 Failure to follow Plan fiduciaries shall discharge their duties with respect to a 344 24 7
plan documents plan solely in the interest of participants and beneficiaries
(29 U.S.C. and in accordance with the documents and instruments
§ 1104(a)(1)(D)) governing the plan
6 Improper The assets of a plan shall not inure to the benefit of (i.e., 235 17 4
benefit to improperly benefit) an employer, but shall be held for the
employer (29 exclusive purpose of providing benefits to the participants
U.S.C. § and beneficiaries of the plan
1103(c)(1))
Page 48 GAO-21-376 EBSA Enforcement
Appendix III: Top 10 Employee Retirement
Income Security Act of 1974 (ERISA) Violations
Identified in Investigations
Number Number
identified in identified in Number
Violated retirement health care identified in
provision Description cases cases other casesa
7 Duty of Plan information shall be provided periodically and written 183 26 0
disclosure: plan in a manner reasonably calculated to be understood by the
descriptions average plan participant
and summary
plan
descriptions (29
U.S.C. § 1021
and 29 C.F.R.
pt. 2520)
8 Bonding (29 Every plan fiduciary and every person who handles funds or 159 2 8
U.S.C. § 1112) property of a plan shall be bonded unless otherwise exempt
9 Reporting The administrator of an employee benefit plan must file an 84 3 0
violation : annual report, which includes certain financial statements
annual reports and an opinion from an independent qualified accountant
(29 U.S.C. §§
1021 and 1023)
10 Failure to All assets of an employee benefit plan must be held in trust 55 0 0
establish trust by one or more trustees, who are to be named in the plan
(29 U.S.C. § or trust instrument or appointed by a person who is a
1103(a)) named fiduciary
Source: Employee Benefits Security Administration (EBSA) Enforcement Management System Manual and data and the Employee Retirement Income Security Act of 1974 (ERISA), as amended |
GAO-21-376
Notes: A single investigation may find multiple violations.
a
Other cases include investigations of service providers where the type of plan was not recorded and
investigations of non-health insurance employer-provided welfare benefits, such as disability or life
insurance.
Page 49 GAO-21-376 EBSA Enforcement
Appendix IV: GAO Contact and Staff
Appendix IV: GAO Contact and Staff
Acknowledgments
Acknowledgments
Kris Nguyen at nguyentt@gao.gov or 202.512.2660
GAO Contact
In addition to the contact named above, Tranchau (Kris) Nguyen
Staff (Director), Amber Yancey-Carroll (Assistant Director), Margaret Weber
Acknowledgments (Analyst in Charge), Julie Anderson, and Anne Hopewell made key
contributions to this report. Also contributing to this report were James
Bennett, John Dicken, Kirsten Lauber, Joel Marus, Michelle Munn, Kristi
Peterson, Kate van Gelder, and Adam Wendel.
(104059)
Page 50 GAO-21-376 EBSA Enforcement
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