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Wednesday, March 14, 2012

401(k) Fee Disclosures: It's Time for Employers to Prepare

The new requirements for the disclosure of 401(k) fees by service providers to plan fiduciaries take effect on July 1, 2012. This impacts when initial 401(k) fee and expense disclosures to plan participants must be made. These participant level requirements apply to plan years beginning after November 1, 2011, but initial disclosures are not due until 60 days after the service provider disclosure regulation’s July 1 effective date.  

Thus, for calendar year plans, the initial annual disclosure of “plan-level” and “investment-level” information (including associated fees and expenses) is due by August 30, 2012 (i.e., 60 days after the service provider disclosure regulation’s July 1 effective date). The first quarterly statement must then be furnished no later than November 14, 2012 (i.e., 45 days after the end of the third quarter (July through September), during which initial disclosures were first required).

The initial disclosures must be provided to all participants and beneficiaries who have the right to direct their investments. The initial quarterly statement need only reflect the fees and expenses actually deducted from the participant or beneficiary’s account during the July through September quarter to which the statement relates.

Now is the time for employers to prepare for the August 30 deadline.


Posted by: 401(k) Compliance Solution
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Friday, February 3, 2012

401(k) fee disclosure rules delayed until July 1

Plan sponsors now have until July 1, 2012 to meet the regulations on 401(k) fee disclosure according to the most recent announcement from the Department of Labor.  The three month extensions was issued to give sponsors and administrators extra time to effectively prepare for a new level of transparency in the 401(k) market. 

Changes to the ruling include more clarity on plan fiduciaries and their indirect compensation, in addition to more focused rules regarding investment-related disclosures, which must now be declared annually.  The DOL has also delayed the implementation of a requirement for plan providers to offer a summary "roadmap" document of fees.  Plan administrators for calendar-year plans must now make their disclosures by August 30, 2012, with a first quarterly statement issued by November 14, 2012.  The DOL also announced it will solicit public comment on a separate proposal requiring providers to offer tools to assist plan fiduciaries in identifying and locating the information to be disclosed.

Posted by: Patrick Carroll
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Monday, January 9, 2012

DOL Says no Extension on Fee Disclosure Deadline

The Labor Department has refuted claims that it plans to move the April 1 compliance deadline for new 401(k) fee disclosure rules to later in the year to give service providers time to make changes based on the final regulation.

The 408(b)(2) regulation will require service providers to detail any fees they are charging plan sponsors. The final regulation could be issued before the end of January.

“The department is sympathetic to concerns by industry, but we haven’t signaled that applicability deadlines will be extended,” said a DOL spokesman. “We’re sympathetic to concerns, so we are aware of them. I’m not going to speculate where the current information is coming from.”


Posted by: Patrick Carroll
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Friday, November 11, 2011

New Fee Disclosure Regulations Could Cause Issues for Plan Sponsors as well as Participants

Plan sponsors as well as participants have reason to be concerned when the two sets of fee disclosure regulations become finalized in Spring 2012.  One set relates to information the investment companies provide to their plan sponsor clients and the other is the fee disclosures plan sponsors must give to their plan participants.  Recordkeeping fees will now be disclosed separately from all other fee disclosures.  Indirect compensation such as revenue sharing, compensation to advisors, attorneys and trusts will also be disclosed.  Plan sponsors will need to be aware of the extra time needed to re-evaluate their plan fees.

Plan participants will also be in for a shock.  Many participants don't understand they have been paying fees all along so there will be a process of explanation.  Companies that have been transparent with their fees won't have as much of an issue, however those that have not will have a lot of explaining to do.

The fee structures can be very complex but once we have all the disclosures, it will be much easier for people to benchmark their particular situation. Recent industry surveys show that most plan participants believe their 401(k) is free while most financial advisors believe that participants know they are paying fees.

Posted by: John Salamone
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Monday, August 15, 2011

DOL to Crackdown on Fee Bundling Abuses

Regulators are cracking down on retirement plans that mislead employees into buying more expensive mutual funds or unknowingly accepting large hidden administration fees.  Thanks to the new ERISA rules, business owners will need to justify the fees they pay to third-party service providers and prove that it was the best deal they could get.

Service providers who traditionally "bundle" their pricing will now be required to break down the fees.  The new rules were initially set to take effect on July 16, 2011 but the Department of Labor had to keep pushing back the deadline because the service providers argued that the transition would take too much work.  The most recent extension pushes the start date to April 1, 2012 and gives vendors and employers an extra 60 days after that to roll out their new account statements.

In the meantime, the regulators will be hiring as many as 17,000 auditors to check every plan's disclosure.  The penalty for failing to itemize fees will be huge.  The initial penalty will be 15% of the plan's assets, ramping up to a full 100% if the company takes longer than the current calendar year to fix the problem.  In addition, the burden of paying the fine will fall on the plan sponsor, unless the sponsor has delegated fiduciary responsibility to a third-party trustee.  Either way, with the liability and the potential penalties involved, it makes sense to pay a consultant to review the due diligence or even conduct a third-party review of the plan.

Posted by: Patrick Carroll
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Monday, August 1, 2011

408(b)(2) Regulation Effective Date Set for April 1, 2012

The U.S. Department of Labor's Employee Benefits Security Administration issued a final regulation to extend the applicability dates for its retirement plan fee disclosure rules.  The department published an interim final regulation under ERISA Section 408(b)(2) in 2010 requiring covered service providers of retirement plans to disclose comprehensive information about their fees and potential conflicts of interest to ERISA-covered plan fiduciaries.  The original date was scheduled for July 16, 2011 but the final ruling moves the effective date to April 1, 2012.

In addition, the department also published a final participant-level regulation requiring that employers disclose information about plan and investment costs to employees who direct their own investments in ERISA-cover 401(k) and other individual account retirement plans.  This regulation, which applies to plan years beginning on or after November 1, 2011, contained a 60-day transition rule that permitted initial compliance no later than 60 days after the beginning of the first plan year on or after November 1. The final ruling retains a modified version of the 60-day transition rule that works in conjunction with the new effective date of the 408(b)(2) regulation.  This linkage will ensure that the 408(b)(2) regulation becomes effective first and that all plans will be able to take advantage of the transition period following the effective date of the 408(b)(2) regulation.  

The increased transparency provided by the fee disclosure rules will benefit employers as well as their employees. Extending the applicability dates of these related rules gives plan fiduciaries an appropriate amount of time to get all required fee and investment information from their service providers so they can disclose complete and accurate information about retirement plan and investment costs to their employees. 

Posted by: Patrick Carroll
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Sunday, July 10, 2011

New ERISA Regulations Approved

The U.S. Department of Labor has approved new regulations under Rule 408(b)(2) of the Employee Retirement Income Security Act that are set to become effective April 1, 2012 -- the original date was July 16, 2011.  Under ERISA requirements, any contract to provide services to an ERISA-qualified plan, including 401(k) accounts and defined benefit plans, must be completed under reasonable terms and with reasonable compensation, and must be necessary to the plan.  The amendments to Rule 408(b)(2) provide that a contract cannot be reasonable unless certain required information is disclosed to the client. The new disclosure regulations require Registered Associated Persons to provide: a specific description of the services being provided; an indication of whether or not fiduciary status is being assumed; the amounts of direct and indirect compensation received in relation to the services and the manner in which such compensation will be received.

Posted by: Patrick Carroll
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Friday, July 1, 2011

IRS Issues 401(k) Questionnaire as Part of Compliance Check

The Employee Plans Examinations group (the “EP Examinations Group”) within the Internal Revenue Service is responsible for overseeing compliance with the retirement plan provisions of the Internal Revenue Code, including the protection of plan assets and of the interests/rights of participants. This is accomplished by conducting examinations of retirement plans. Periodically, EP Examinations focuses on particular areas of noncompliance. This year, the IRS is focusing on 401(k) plans in general. As part of its enforcement efforts, on May 17, 2010, the IRS sent out a letter with instructions to 1,200 randomly selected employers with 401(k) plans requiring them to timely complete a 401(k) compliance questionnaire. The purpose of the questionnaire is to gather information on various compliance issues.

In addition to the focus on 401(k) plans, the EP Examinations Group is targeting several issues ranging from plan coverage and participation issues, to issues affecting plans of multi-national corporations. To keep plan sponsors abreast of the EP Examinations Group enforcement efforts, this client alert provides an overview of the issues being targeted. In the event that a plan is subject to an examination, these issues will likely be reviewed by the agent. If a plan has a potential compliance issue in any of these targeted areas, it is imperative that the problem be properly identified and corrected before an examination occurs.

Posted by: John Salamone
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Wednesday, June 15, 2011

Investment Policy Statements

Can plan sponsors meet their ERISA fiduciary obligations without having an investment policy statement (IPS) in place?  Yes, but a well-written investment policy statement can provide a solid framework for managing your plan's investment portfolio.  The statement outlines general rules and directives and plays a crucial role in helping fiduciaries maximize their effectiveness in serving plan participants.  Most important, it provides a set of standardized guidelines that anyone serving in a fiduciary capacity can follow.  Once your IPS has been drafted, it should be reviewed by a qualified ERISA attorney to make sure the language conforms to ERISA standards and that it does not conflict with provisions in the plan document.

Posted by: John Salmone
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