Administrators of welfare benefit plans are reminded that for plan years beginning in 2013, an attachment must be included with Form 5500 filed with the Department of Labor (DOL) that provides information as to compliance with the requirement that multiple employer welfare arrangements (MEWAs) file Form M-1 with the DOL annually. MEWAs are employee welfare benefit plans that cover employees of two or more unrelated employers, such as employers that are not members of the same controlled group. The Form 5500 attachment is required even if the welfare benefit plan is not a MEWA.
In general, an unfunded welfare benefit plan (including a plan whose benefits are provided by insurance) is not required to file Form 5500 if the plan covered fewer than 100 participants as of the beginning of the plan year. For this purpose, “participants” include active employees entitled to benefits and former employees entitled to benefits (both retirees and former employees receiving COBRA healthcare continuation coverage). Beginning with the 2013 plan year, however, a welfare benefit plan that is a MEWA must file Form 5500 even if the plan were otherwise exempt from Form 5500 filing because it was unfunded and had fewer than 100 participants at the beginning of the plan year.
If a welfare benefit plan must file Form 5500 for 2013, the instructions to that form indicate that an attachment must be included that provides the following information:
- A statement as to whether the plan was subject to the Form M-1 filing requirements during the plan year
- If the Form M-1 filing requirements applied to the plan, a statement as to whether the plan is currently in compliance with these requirements
- The “receipt confirmation code” for the 2013 Form M-1, if that form had been filed
The receipt confirmation code is a unique code generated by the Form M-1 online filing system. This code can be found under the “completed filings” area of the DOL’s Form M-1 online filing system.
If the 2013 Form 5500 must be filed for a welfare benefit plan but has not yet been filed, the required attachment as to Form M-1 filing compliance should be included. If a Form 5500 has already been filed for a welfare benefit plan for 2013 that did not include the required attachment as to Form M-1 filing compliance, the plan administrator should file an amended return to include this attachment.
The 2013 Form 5500 instructions include the following admonition:
A welfare benefit plan’s failure to attach a statement indicating whether it is subject to the Form M-1 filing requirements, and if so, whether they are currently in compliance with such requirements and failure to provide a valid Receipt Confirmation Code, will subject the Form 5500 filing to rejection as incomplete and civil penalties may be assessed pursuant to ERISA Section 502(c)(2) and 29 CFR 2560.502c-2.
For further information, please contact the author of this article, Larry R. Goldstein, or any other member of McGuireWoods’ employee benefits team.