The Department of Labor audit. What EBSA looks for in a health plan, and how to be ready.

The short answer

Employers face a Department of Labor health plan audit as an EBSA investigation under ERISA Section 504, often triggered by participant complaints, Form 5500 reviews or referrals. EBSA asks for existing plan documents within ten business days and reviews disclosure, fiduciary conduct, claims procedures, COBRA, HIPAA and parity. A documented fiduciary process is the best preparation.

Key takeaways

  • The Employee Benefits Security Administration investigates health plans under ERISA Section 504. In fiscal year 2025, it closed 878 civil investigations, and 556 of them (63%) produced monetary results or other corrective action.
  • A health plan investigation can cover ERISA disclosure, fiduciary conduct, claims procedures, and the Part 6 and 7 health laws, including COBRA, HIPAA, mental health parity and the ACA.
  • EBSA's model document request letter asks the plan to send its documents within ten business days. A file you build after the letter arrives is a file built under deadline.
  • Prudence is judged on process. Committee charters, minutes, vendor and fee reviews and compliance filings are the record that shows it.
  • Fiduciaries who breach their duties can be personally liable to restore plan losses, and ERISA Section 502(l) adds a 20% penalty on amounts recovered.

What is a Department of Labor health plan audit?

What employers call a Department of Labor audit is formally an investigation by the Employee Benefits Security Administration (EBSA), the agency that enforces Title I of ERISA. The authority comes from ERISA Section 504, which lets the Secretary of Labor investigate whether any person has violated the law and require the plan to produce its books and records.

Investigations are not reserved for retirement plans. EBSA’s enforcement priorities include mental health and substance use disorder benefits, surprise billing and cybersecurity, all of which reach health plans. In fiscal year 2025, EBSA Benefits Advisors handled over 27,000 No Surprises Act complaints, resulting in $67 million in benefit payments, according to EBSA’s fiscal year 2025 fact sheet.

How often do investigations end in findings?

More often than not. The same fact sheet reports that in fiscal year 2025, EBSA:

MeasureFY 2025 result
Recovered for plans, participants and beneficiaries$1.4 billion
Civil investigations closed878
Civil investigations with monetary results or other corrective action556 (63%)
Criminal investigations closed253

Those figures cover retirement, health and welfare plans together. The message for a health plan sponsor is the same: once an investigation opens, the odds favor some correction.

What triggers an EBSA investigation?

EBSA’s Enforcement Manual section on health plan investigations lists where cases come from:

  • compilations of plans and service providers drawn from reports filed with EBSA, such as Form 5500
  • review of annual reports, financial statements and other internal EBSA sources
  • information from other agencies, such as HHS and state insurance departments
  • news reports, industry publications, patient advocacy groups and private litigation
  • complaints from participants, fiduciaries, informants and others
  • national enforcement strategies and regional office priorities

There is rarely advance warning. Whatever process exists when the letter arrives is what you defend the plan with.

What does EBSA review in a health plan?

According to the Enforcement Manual, a health investigation may review all applicable ERISA provisions, including:

ERISA areaWhat it covers
Part 1, reporting and disclosurePlan documents, SPDs, Form 5500 and participant notices
Part 4, fiduciary responsibilityPrudence, loyalty, reasonable fees and prohibited transactions
Part 5, claims proceduresHow claims and appeals are decided and communicated
Parts 6 and 7, health lawsCOBRA, HIPAA, mental health parity, WHCRA, the Newborns’ Act, GINA, Michelle’s Law, CHIPRA and the ACA

The manual says investigators should generally evaluate every health plan and benefit package option the employer offers, and that the review will typically include an operational look at claims data. Plan-level investigations also examine claims administration, failure to provide promised benefits, reasonable administrative fees and potential prohibited transactions.

Two areas deserve extra attention. Mental health parity is an EBSA priority, and the Consolidated Appropriations Act, 2021 requires plans to make their comparative analyses of nonquantitative treatment limitations available on request (see mental health parity and NQTLs). And plans must file the Gag Clause Prohibition Compliance Attestation by December 31 each year; a missed filing is one more gap in the record (see the gag clause attestation).

What happens when the letter arrives?

EBSA’s model health plan document request letter cites Section 504, names the Part 7 laws the plan will be examined under, and asks the plan administrator to submit the documents on an attached list within ten business days. The letter explains that sending documents before any on-site work can reduce the time spent with plan officials and may eliminate the need for an on-site visit.

Investigators can send similar requests to the plan sponsor and to service providers, including insurers and TPAs, and can use subpoenas when needed. A request letter may ask for existing documents but not for documents to be created. That detail matters: if the committee minutes or vendor reviews do not already exist, there is nothing to produce.

Separately, ERISA Section 502(c)(6) lets the Department assess a penalty of up to $100 a day, capped at $1,000 per request before inflation adjustments, when a plan administrator fails to furnish requested plan documents within 30 days.

How do investigations get resolved?

EBSA says it is its policy to promote voluntary compliance with ERISA whenever possible. When fiduciaries take proper corrective action, the Department will not bring a civil lawsuit over those issues. Corrections can include restoring losses, ensuring claims are properly processed and paid, and paying applicable penalties. When voluntary compliance fails, EBSA may refer the case to Department of Labor attorneys for litigation.

The financial exposure is personal. The Department of Labor says fiduciaries who do not follow the basic standards of conduct may be personally liable to restore losses to the plan. On top of any recovery, ERISA Section 502(l) requires a civil penalty equal to 20% of the amount recovered from a fiduciary for a breach, including amounts paid under a settlement with the Department.

Why is “I don’t know” the worst answer?

Donovan and Chelsea Ryckis discussed this with Patrick Williams on The Business of Benefits, Episode 83. Patrick, co-founder of Fiduciary in a Box, told the story of a company with roughly 3,000 covered lives that passed on documenting its fiduciary process. Six months later it was notified of a Department of Labor audit and called back for help loading what it could into a system after the fact.

“That’s just not defensible. Picture this: your organization is being investigated by the Department of Labor, and your response is ‘I don’t know.’ You’re the plan sponsor and the fiduciary. That’s not a good answer, and it’s not a way to start off a meeting.” Patrick Williams

The Department of Labor’s own guidance makes the same point in plainer terms. Fiduciary status depends on the functions a person performs, not their title, and prudence focuses on the process for making fiduciary decisions. Documenting decisions and the reasons behind them is how a fiduciary shows that process existed.

Does your advisor carry the right coverage?

Patrick flagged a second blind spot on the episode:

“When you put together a committee, whether for your retirement plan or your health and welfare plan, one of the insurances you acquire is fiduciary liability coverage. But did you know the advisor you’re working with on your health and welfare doesn’t have fiduciary liability insurance? They carry a separate type of coverage that doesn’t protect them in the event of an ERISA claim. You have someone brokering insurance who isn’t protected under an ERISA claim themselves.” Patrick Williams

Fiduciary liability insurance is separate from the ERISA fidelity bond, which protects the plan against loss from theft or fraud by people who handle plan funds (see the ERISA bond). Ask your own committee’s carrier what the policy covers for health and welfare decisions, and ask any advisor whether its coverage responds to an ERISA claim, in writing. Fiduciary insurance guidance is where that review starts.

What does a documented process look like?

None of this requires a legal department. It requires a rhythm:

  1. Form a real committee. Name the people responsible for plan oversight, define what they are accountable for, and adopt a written charter. A committee that exists only in conversation cannot be verified.
  2. Meet regularly and keep minutes. ERISA sets no frequency; quarterly is a common baseline. Minutes should show what was reviewed, discussed and decided.
  3. Review vendors and fees on purpose. The Department of Labor says hiring a service provider is a fiduciary function and that fees must be reasonable. Benchmark them and keep the review, not just the renewal that followed.
  4. Keep plan documents current. The plan document, SPD and wrap document should match how the plan actually operates (see the ERISA compliance checklist).
  5. Track every filing and attestation. Form 5500, the gag clause attestation, parity analyses and participant notices, each with proof of completion.
  6. Keep the file ready to produce. Store charters, minutes, vendor reviews and filings where they can be sent within days, not weeks.

Fiduciary governance is how Ethos Benefits sets this up for clients: a committee, a charter, quarterly meetings, minutes and a record of every decision. For the CFO’s view of the same work, read a CFO’s fiduciary playbook. See what a documented, data-driven renewal produced for one employer in the Axiom Healthcare case study.

When should you build the record?

Before the letter arrives. An EBSA investigation does not ask whether you meant well. It asks what you can prove, and the documents it can request are the ones that already exist. If your health plan does not have a documented fiduciary process today, building one now keeps the timeline in your hands instead of the government’s.

This article is general information, not legal advice. It reflects EBSA guidance and enforcement data available as of October 27, 2026.

Questions employers ask about this.

What triggers a Department of Labor audit of a health plan?

EBSA's Enforcement Manual lists the sources, including participant complaints, reviews of Form 5500 filings, referrals from HHS and state insurance departments, news reports, private litigation and national enforcement priorities. Plans rarely get advance warning, so the employer's record of committee minutes, vendor reviews and compliance filings needs to exist before a letter arrives.

What does a Department of Labor health plan audit look for?

It looks for compliance with ERISA's disclosure, fiduciary and claims procedure rules, and with the Part 6 and 7 health laws such as COBRA, HIPAA, mental health parity and the ACA. Investigators also look at administrative fees and possible prohibited transactions, and they can request documents from the plan sponsor and from service providers such as insurers and TPAs.

How long do you have to respond to an EBSA document request?

EBSA's model health plan document request letter asks the plan to submit the listed documents within ten business days of receiving the letter. Separately, ERISA lets the Department penalize a plan administrator who does not furnish requested plan documents within 30 days.

Can a plan fiduciary be held personally liable after an investigation?

Yes. The Department of Labor says fiduciaries who do not follow ERISA's standards of conduct may be personally liable to restore losses to the plan. ERISA Section 502(l) also requires a civil penalty of 20% of amounts recovered for a fiduciary breach.

Can the Department of Labor ask for documents that don't exist yet?

No. An EBSA request letter may ask for existing documents but not for documents to be created. That cuts both ways for an employer. If committee minutes, vendor and fee reviews or compliance filings were never written, there is nothing to produce, and minutes drafted after the letter arrives are a record built under deadline.

Sources

  1. EBSA monetary results, fiscal year 2025 (fact sheet), U.S. Department of Labor, Employee Benefits Security Administration
  2. EBSA enforcement, U.S. Department of Labor, Employee Benefits Security Administration
  3. Health plan investigations (EBSA Enforcement Manual section, with model health plan document request letter), U.S. Department of Labor, Employee Benefits Security Administration
  4. Understanding your fiduciary responsibilities under a group health plan, U.S. Department of Labor, Employee Benefits Security Administration
  5. Meeting your fiduciary responsibilities, U.S. Department of Labor, Employee Benefits Security Administration
  6. 29 U.S.C. 1134, ERISA Section 504, Investigative authority, Legal Information Institute, Cornell Law School
  7. 29 U.S.C. 1132, ERISA Section 502, Civil enforcement (including 502(c)(6) and 502(l)), Legal Information Institute, Cornell Law School
  8. Gag Clause Prohibition Compliance Attestation, Centers for Medicare & Medicaid Services

This article is general information for employers, not legal or tax advice. Talk with your plan's legal counsel or tax advisor about your own situation.

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