403(b)s Subject to ERISA

Q. What kinds of 403(b) plans are subject to ERISA? 

A. Most 403(b) plans are not subject to ERISA. However, those offered by most private-sector tax-exempt organizations are. 

The Government Accountability Office (GAO) in 2023 reported that participants in ERISA 403(b) plans were concentrated in the education or health care sectors. 

Only 403(b) plans that are subject to ERISA must file the Form 5500. In the GAO’s analysis of Forms 5500 that ERISA 403(b) plans filed in 2019, they found that 56% of ERISA plan participants worked for employers in the health care industry, and another 27% of participants were in the education sector. Regarding the number of plans, the GAO reports that it found a fairly even distribution of plans from the  education, health care, social assistance, and religious sectors. 

In its 2023 report, the GAO says that the number of ERISA 403(b) plans declined from 21,900 in 2010 to 20,900 in 2019. They attribute that, in part, to mergers and acquisitions in the health care sector. At the same time, however, they say that during that period the number of participants in 403(b) ERISA plans grew from 7.1 million to 9.9 million.