After Delay, DOL Issues 2019 Adjusted Penalty Amounts

The DOL has announced the 2019 annual adjustments to the civil monetary penalties for a wide range of benefits-related violations. As background, legislation enacted in 2015 requires annual adjustments to certain penalty amounts by January 15 of each year (see our Checkpoint article). Due to the government shutdown, the 2019 penalties were not published by this deadline and thus have a later-than-usual effective date. The 2019 adjustments are effective for penalties assessed after January 23, 2019 (with respect to violations occurring after November 2, 2015). Here are highlights:

• Form 5500. The maximum penalty for failing to file Form 5500 (which must be filed annually for most ERISA plans) increases from $2,140 to $2,194 per day that the filing is late.
• Group Health Plans. The maximum penalty for failing to provide the summary of benefits and coverage (SBC) required under the Affordable Care Act increases from $1,128 to $1,156 per failure. Violations of the Genetic Information Nondiscrimination Act (GINA), such as establishing eligibility rules based on genetic information or requesting genetic information for underwriting purposes, and failures relating to disclosures regarding the availability of Medicaid or children’s health insurance program (CHIP) assistance, may result in penalties of $117 per participant per day, up from $114.
• 401(k) Plans. For plans with automatic contribution arrangements, penalties for failure to provide the required ERISA § 514(e)preemption notice to participants increase from $1,693 to $1,736 per day. Penalties for failing to provide blackout notices (required in advance of certain periods during which participants may not change their investments or take loans or distributions) or notices of diversification rights increase from $136 to $139 per day. And the maximum penalty for failure to comply with the ERISA § 209(b) recordkeeping and reporting requirements increases from $29 to $30 per employee.
• Multiple Employer Welfare Arrangements (MEWAs). Penalties for failure to meet applicable filing requirements, which include annual Form M-1 filings and filings upon origination, increase from $1,558 to $1,597 per day.

Adjustments have also been made to other benefits-related penalties, including those for failure to provide certain information requested by the DOL and for certain defined benefit plan compliance failures.

EBIA Comment: The affected penalties relate to a wide range of compliance issues. But not all violations will give rise to the highest permitted penalty—in some instances, the DOL has discretion to impose lower penalties, such as under programs designed to encourage Form 5500 filing. For more information, see EBIA’s ERISA Compliance manual at Sections XIX.G (“Form M-1 Obligations for MEWAs and Participating Employers”), XXII.D (“Consequences of Form 5500 Noncompliance”), XXIV.O (“Summary of Benefits and Coverage (SBC) Under Health Care Reform”), and XXXVII.H (“Civil Penalty Assessments”). See also EBIA’s 401(k) Plans manual at Sections VIII.D.2 (“Automatic Contribution Arrangement (ACA): Specific Preemption”) and XXVI.K (“Blackout Notice Requirements”); EBIA’s HIPAA Portability, Privacy & Security manual at Sections V.F (“Penalties for Violation of Genetic Information Nondiscrimination Act”) and X.F.3 (“Additional Notice and Disclosure Relating to State Premium Assistance Subsidy”); EBIA’s Health Care Reform manual at Section XVI.I (“Consequences of Failing to Provide the SBC”); EBIA’s Group Health Plan Mandates manual at Section XXII.F.1 (“GINA Title I Enforcement”); and EBIA’s Self-Insured Health Plans manual at Sections XXIX.B (“Annual Form 5500 Reporting”) and XXIX.D (“Other Reporting Requirements”).

Contributing Editors: EBIA Staff.