For about 30 years, DOL has administered a limited amnesty program called the “Delinquent Filer Voluntary Compliance Program" or “DFVC.” It provides reduced civil penalties to benefit plan administrators that either failed to file Form 5500s or filed them late. If a plan administrator is eligible for and chooses to use DFVC, it files the delinquent Form 5500 electronically and then pays a relatively small penalty to DOL, which is generally capped at $750 a year for small plans and $2,000 a year for larger plans (slightly higher caps apply if multiple Forms 5500 are being filed for the same plan). The current statutory penalty for not filing a Form 5500 is over $2,700 a day, uncapped, and there is no statute of limitations, so DOL can assess penalties for missing Forms 5500 that are in the hundreds of thousands of dollars. Therefore, DFVC can be a very attractive alternative for plan administrators that are aware they have failed to file a Form 5500. (Note that DFVC is not available if the DOL has already discovered the failure to file and notified the plan of the problem.)

On December 31, the DOL announced through a notice in the Federal Register that it is now expanding DFVC to the Form M-1, which is a required filing for multiple employer welfare arrangements (MEWAs), including such arrangements that are not group health
plans but provide benefits that consist of medical care (non-plan MEWAs). Certain “Entities Claiming Exemption” (ECEs) are also required to file an M-1 if they claim they are not a MEWA due to a statutory exemption for arrangements based on collective bargaining agreements — DFVC is available for those entities as well. Essentially, the same program that is currently available for Form 5500 will now be available for Form M-1 — administrators of MEWAs will now also be able to file delinquent Form M-1 filings through DFVC and pay a $750 penalty to limit their exposure to the greater penalties that can apply. (The current penalty for failing to file a Form M-1 is a little under $2,000 a day, also uncapped.) Administrators of MEWAs will want to review whether they are up-to-date with their Form M-1 filings and consider utilizing the DFVC program if they discover they may have missed one or more filings.