A provision of the Affordable Care Act of 2010 (ACA) included additional reporting requirements and greater U.S. Department of Labor (DOL) oversight of Multiple Employer Welfare Arrangements (MEWAs). The DOL’s Employee Benefits Security Administration (EBSA) issued final rules earlier in 2014 which clarified the requirements for initial and annual Form M-1 Reports for MEWAs and Certain Entities Claiming Exception (ECEs). The final regulations also specified that MEWAs required to file form M-1 are also required to file a Form 5500 even if otherwise exempt due to the number of plan participants and/or source of funding.
The initial and annual Form M-1 filing must be done electronically on the EBSA.gov website. Upon completion of the filing, which is due no later than March 1 following each calendar year, the filing plan administrator of the MEWA receives a “Receipt Confirmation Code” from the EBSA. Beginning with the 2013 Form 5500, filing MEWAs are required to include an attachment to the Form 5500 which includes the receipt confirmation code received for the filing of the M-1. What has caught a number of 5500 filers off guard is that the Form 5500 instructions state that all filers (including single employer plans with over 100 participants) filing Form 5500 for their health and welfare plans must include an attachment with their Form 5500 beginning with the 2013 5500 labeled “Form M-1 Compliance Information.” The attachment must state: 1) whether the plan was subject to Form M-1 filing requirements during the plan year (single employer plans are not); 2) if the plan is a MEWA and subject to the Form M-1 filing requirements, whether the plan is currently in compliance with the Form M-1 filing requirements; and 3) if yes, the plan administrator must provide the receipt confirmation code for 2013 evidencing the electronic filing. If the plan was subject to M-1 filing in a prior year, but was not subject to the M-1 filing for the year of the 5500 being filed, the plan administrator is supposed to include the receipt confirmation code for the most recent M-1 that was filed.
For calendar year large health plans (over 100 participants), July 31, 2014 was the normal deadline for filing the 2013 Form 5500. Small insured and self-funded health plans with under 100 participants (other than MEWAs) are exempt from 5500 filings. We have learned that not all software providers that generate Form 5500 were able to make programming changes in time to automatically produce this attachment to the 2013 Form 5500s. Accordingly, preparers and plan administrators using those vendors needed to generate the required attachment manually, scan it and attach it to their 5500 on the EFAST System as “other attachments.”
Incomplete filing of Form 5500s can result in rejection of the filing and late filing penalties under ERISA of $50 per day with no limit. Non-filers are subject to ERISA penalties of up to $30,000 per year. It is not clear whether the Department of Labor will walk softly and politely request the missing attachments to be filed as an amendment to the earlier deficient filing or whether it will get out the big stick and issue rejections and penalty notices. Unless the EBSA issues relief guidance for single employer plans, plans that are on extension to October 15th, should include the M-1 attachment with the filing. Those who have already filed without the attachment should consider filing an amended return before receiving any notices from the DOL.