Weekly Health Compliance Briefing
April 22, 2026
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Note to Subscribers
The Weekly Health Compliance Briefing will not be published on March 29, 2026. Look for your next Weekly Health Compliance Briefing on Wednesday, May 6, 2026.
Health Notes
EBSA Bulletin Signals a Shift in ERISA Enforcement Principles
On April 14, 2026, the U.S. Department of Labor’s Employee Benefits Security Administration (EBSA) issued Field Assistance Bulletin No. 2026-01 (FAB) which sets out four enforcement principles that are designed to ensure that EBSA’s enforcement “is fair, even-handed, responsive, and focused” and its enforcement authority is used in a manner that “promotes transparency, consistency, and the rule of law.”
Principle 1: EBSA will prioritize investigations evidencing the most egregious conduct or significant harm.
EBSA announced that it will concentrate its enforcement resources on cases involving the most egregious misconduct or the greatest harm to plan participants and beneficiaries. On the criminal side, EBSA will prioritize cases addressing the most significant harm to the employee benefits system. On the civil enforcement side, EBSA’s highest priority will be targeting breaches of the duty of loyalty (i.e., conduct taken other than for the “exclusive purpose of providing benefits to participants and their beneficiaries”).
In explaining its focus on the duty of loyalty, EBSA notes that ERISA is “a law of process and not results.” Accordingly, EBSA is not looking to pursue cases that “unfairly second-guess process-based fiduciary judgments.” In contrast, breaches of the duty of loyalty and conflicts of interest pose a greater risk of harm to participants. EBSA also emphasized that it remains committed to protecting plan participants and beneficiaries through enforcement of health benefit rules under Part 7, disclosure requirements, claims processing, and adjudication requirements.
Principle 2: EBSA will not regulate through enforcement whenever possible.
The FAB directs EBSA staff not to regulate through enforcement or use enforcement to drive policy. In furtherance of this goal, the FAB notes that EBSA must provide clear and advance guidance as to its interpretation of ERISA and fiduciary duties to not cause “unfair surprise.” For example, novel legal theories or new ERISA interpretations should be introduced through notice-and-comment rulemaking or sub-regulatory guidance rather than being raised for the first time in enforcement actions. In general, all enforcement activity must have a close factual nexus to either (i) the plain language of ERISA, (ii) clearly established guidance in final regulations or prominently published sub-regulatory guidance, or (iii) clearly established case law.
Principle 3: EBSA’s leadership will review all proposed significant enforcement activities.
To ensure consistency across all EBSA regional offices and adherence to the FAB’s enforcement priorities, all proposed significant enforcement activities (including proposed settlements and voluntary corrective actions) must be reviewed by EBSA’s leadership, ideally at least two weeks before any pertinent deadline or proposed action. Significant issues requiring senior review include novel legal theories, circuit court split issues, and positions that deviate from prior EBSA positions. This centralization of review authority is designed to promote national consistency in enforcement and reduce the risk of outlier actions by individual regional offices.
Principle 4: EBSA’s enforcement must be responsive and timely.
Acknowledging concerns raised by investigated parties and Congress that some investigations drag on for extended periods, EBSA is committed to completing investigations within a reasonable timeframe and to conducting its enforcement activities in a proper and respectful manner. EBSA commits to the following concrete investigation timelines absent exceptional circumstances: (i) routine investigations involving less complicated issues, such as delinquent employee contributions, disclosure violations and bonding violations, should be completed within 18 months; and (ii) more complex investigations should be completed within 30 months.
The FAB also directs EBSA investigators not to do anything that compromises the Department of Labor’s (DOL’s) independence, integrity, or credibility, including eliminating any appearance that enforcement activities or priorities are being coordinated with plaintiff lawyers pursuing private actions.
Takeaways
The FAB represents a meaningful change to EBSA’s enforcement position.
Among the takeaways to consider:
- The emphasis on loyalty over prudence as an enforcement priority, combined with the caution against second-guessing process-based fiduciary decisions, underscores the importance of maintaining vigorous fiduciary governance processes and thoroughly documenting decision-making.
- The commitment not to regulate by enforcement should provide an opportunity for fiduciaries to defend good-faith processes.
- The new investigation timelines and quarterly review requirements reflect an apparent commitment to efficiency.
Note that, by its own terms, the FAB is an internal DOL policy and does not create any enforceable rights for any party. Instead, it provides a valuable window into the current EBSA leadership’s priorities.