Fiduciary Risk in Data Privacy and Cybersecurity? You Bet!
Health plan administrators are (or certainly should be) well-versed in their obligations under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH). Failure to secure protected health information (PHI) from disclosure can result in civil monetary penalties of up to $1.5 million and potential criminal penalties of up to 10 years’ imprisonment. Penalties of this size have the tendency to get people’s attention. But, if you are a retirement plan fiduciary or administrator (which likely includes officers and other senior-level executives at a company), are you aware of your obligations to protect sensitive data and other personal information in your control and the control of your vendors?
Retirement plans store extensive personal data on each participant and beneficiary. This data ranges from Social Security numbers and addresses to dates of birth, bank account and financial information, and other records and is stored physically and in electronic forms for years, if not decades. The term often used for this type of information is “personal identifiable information” (PII). While stored, numerous human resources and benefits department personnel, participants, beneficiaries, recordkeepers, trustees, consultants, and other vendors have access to some or all of this highly sensitive information. The extensive trove of PII presents an attractive, and often undersecured and easily exploitable, opportunity for criminals intent on stealing identities or on the outright theft of plan assets and benefit payments.
Federal laws similar to HIPAA but applicable to retirement plans have not (yet) been enacted. However, this does not mean that retirement plan fiduciaries and administrators are off the hook. Under the Employee Retirement Income Security Act of 1974 (ERISA), as amended, a fiduciary is required to discharge his or her duties solely in the interests of plan participants and beneficiaries, and, in doing so, must adhere to a standard of care frequently described as the “prudent expert” standard. Under this standard, it is not difficult to conclude that a retirement plan fiduciary who does not take certain precautions with regard to the protection of PII may be in breach of his or her fiduciary duty. And, although a breach of an ERISA fiduciary duty does not trigger clear statutory penalties like those applicable under HIPAA and HITECH, under ERISA, fiduciaries are personally liable for their fiduciary breaches.
So, what precautions should retirement plan fiduciaries take to help ensure that they have fulfilled their fiduciary duties with respect to data privacy and cybersecurity? What should a fiduciary do in the event of a data privacy or cybersecurity breach? Presently, 47 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have enacted some form of breach notification law, and it is unsettled whether these breach notification laws are preempted by ERISA.