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The Government Accountability Office released a report addressing Employee Benefits Security Administration (“EBSA”) enforcement efforts. EBSA investigations are conducted primarily out of ten regional offices, including Cincinnati and Chicago. EBSA has roughly 375 investigators to cover approximately 722,000 retirement plans and 2.5 million health plans. Most cases are settled by voluntary compliance, but EBSA can refer civil cases to the Office of the Solicitor, or criminal cases to the Department of Justice.
EBSA has shifted their enforcement strategy. Previously, investigators were evaluated based on the number of cases opened and closed, which created an incentive to focus on simple, easily-addressed matters. In 2013, however, EBSA shifted its strategy to focus on difficult cases with a higher potential for recovery. Investigators are now encouraged to focus on “major cases,”—such as investigations of service providers that work with many plans and systemic issues that may require asset management or administrative reform—in order to maximize recovery. EBSA has also shifted their investigative strategy to rely on targeted investigations instead of random samples, and have begun focusing on specific issues requiring a technical expertise.
The report also addressed current enforcement priorities. Current national health plan enforcement priorities include mental health parity, autism treatment denials, emergency room claim denials, and service provider compensation. Current national pension plan enforcement priorities include missing participants, service provider compensation, conflicts of interest, due diligence, and soft-dollar compensation. The Cincinnati regional office is focusing on improper compensation paid to plan sponsors, employees and affiliates. The Chicago regional office is directing their attention to imprudent or conflicted investments; and service provider selection, monitoring, and fees.