Headlines about "Communication and disclosure to participants"
Gathered from the web by the editors at BenefitsLink.com.
[Opinion] Obfuscation Means 408(b)(2) Not Quite a 'Game-Changer' ... Yet
"[W]hile 408(b)(2) is now the rule of the land, two factors have thus far made the new regulation much ado about nothing: [1] Most 401(k) service providers have continued their mastery of obfuscation; [2] The majority of employers are still more concerned with staying in business than in understanding their 401(k) plans.... I use the word 'obfuscation' not in an attempt to justify the 20 extra hours of classes I took to get a Minor in English, but because it truly describes how much the 401(k) industry goes out of its way in 'hiding the intended meaning in communication, making communication confusing, willfully ambiguous, and harder to interpret.'" (Advisors Access)
[Guidance Overview] Treatment of ACA Whistleblower Complaints (PDF)
"[T]he relationship between the employee's receipt of a subsidy and the potential tax penalty imposed (section 4980H) on an applicable Large Employer could create an incentive for the employer to retaliate against an employee.... [Therefore,] Applicable Large Employers may consider taking the following actions early to minimize or avoid the likelihood of causing retaliatory complaints by employees:" (Chao & Company, Ltd.)
Participant Communications: A Strategic Differentiator for Health Plans
"As consumers begin to have more choice in their health insurance coverage, it is critical that health plans provide an excellent member experience to help drive loyalty. A targeted and impactful communication strategy can differentiate health plans and distinguish an organization from its competitors. Communications, therefore, should be a core part of a health plan's reform strategy, and health plans should consider who the target audiences are and how communications can influence bottom-line results (such as new member acquisition or increased retention)." (Deloitte Center for Health Solutions)
DOL Regulatory Agenda Released
The U.S. Department of Labor has published the Fall 2012 issue of its regulatory agenda, which lists the regulations under active consideration for publication, proposal or review during the next 12 months. (Employee Benefits Security Administration)
[Official Guidance] U.S. Department of Labor Issues Compliance Guidance for Employee Benefit Plans in Wake of Hurricane Sandy
"The guidance provided in this statement applies to employee benefit plans, plan sponsors, as well as service providers to such employers, located on October 26, 2012 in one of the counties or Tribal Nations that have been identified as covered disaster areas because of the devastation caused by Hurricane Sandy.... The Department recognizes that some employers and service providers acting on employers' behalf, such as payroll processing services, located in designated affected areas will not be able to forward participant payments and withholdings to employee pension benefit plans within the prescribed timeframe. In such instances, the Department will not, solely on the basis of a failure attributable to Hurricane Sandy, seek to enforce the provisions of title I with respect to a temporary delay in the forwarding of such payments or contributions to an employee pension benefit plan to the extent that affected employers, and service providers, act reasonably, prudently and in the interest of employees to comply as soon as practicable under the circumstances." (Employee Benefits Security Administration)
Election Brings Increased Clarity to HR Agenda
"For employers, President Obama's victory hopefully brought clarity in several key areas, especially issues surrounding healthcare reform and workplace issues involving National Labor Relations Board, Equal Employment Opportunity Commission and Americans with Disabilities Act regulations, among others.... [A]mong the major changes set for 2014 is the requirement that employers of more than 50 people provide health insurance or pay a tax penalty." (Human Resource Executive Online)
Sixth Circuit Finds ERISA Section 510 Does Not Protect Unsolicited Internal Complaint (PDF)
"The question in this case is whether [ERISA section] 510 extends its protections to an employee's unsolicited, internal complaint to his employer that it has violated ERISA.... The Sixth Circuit has not yet had occasion to address the issue..... [T]he Court concludes that in this case Section 510 does not protect the plaintiff's unsolicited, internal complaint -- an email to his employer threatening to report its ERISA violations to state and federal authorities -- because it was unconnected to any 'inquiry or proceeding'.... A fuller explanation is that 'an employee's grievance is within Section 510's scope whether or not the employer solicited information,' provided that the employee himself solicited information. Without the asking for information, there is no 'inquiry'." [Sexton v. Panel Processing, Inc., No. 12-10946 (6th Cir., Oct. 30, 2012)] (U.S. Court of Appeals for the Sixth Circuit)
Miller Chevalier Focus on Employee Benefits, October 24, 2012
This issue includes: Health and Welfare: Upcoming Healthcare Reform Deadlines and Effective Dates; Qualified Plans: Upcoming Amendment and Disclosure Deadlines; Executive Compensation: Section 409A: Relief Period for Release-Contingent Payments Coming to a Close. (Miller & Chevalier Chartered)
Before It's Too Late: A Retirement Security Newsletter from Phyllis Borzi, April 29, 2013
"'The Retirement Gamble' took a look at some of the reasons so many Americans are financially unprepared for retirement.... [M]uch of the program is spent profiling regular Americans who are trying to get by and doing the best that they can to prepare for an uncertain future. The show clearly outlines the challenges faced by people trying to navigate an opaque, fractured, and confusing system." (U.S. Departments of Labor)
[Guidance Overview] DOL Updates Employer Model CHIP Notice
"The US Department of Labor (DOL) has updated its model notice that employers with group health plans may use to notify eligible employees about premium assistance available through their state Medicaid or Children's Health Insurance Program (CHIP). Employees must receive this information before the start of the plan year. Employers may use the DOL model or create their own notices, which must include program contact information for the states where employees reside. As revised July 31, the DOL notice now contains information for 38 states -- two fewer than the initial 2010 model listed." (Mercer)
Reinhart Employee Benefits Update, August 2012 (PDF)
Articles include: HHS Releases Additional FAQs on Medical Loss Ratio Requirements; HHS Issues Audit Protocol for HIPAA Compliance as Mandated by HITECH Act; DOL Revises Mailing Address and Electronic Filing Method for Plan Fiduciaries to Report Disclosure Failures by Covered Service Providers; IRS Issues FAQs on Notice Requirements for Benefit Restrictions for Single-Employer Defined Benefit Plans; DOL Issues Revised Guidance Regarding Participant-Level Fee Disclosures. (Reinhart Boerner Van Deuren s.c.)
Can Index Funds Fix Your 401(k) Fee Problem?
"[I]t's hard to convince people that index funds are a better deal. Studies repeatedly show that people think higher fees buy better performance.... For better or worse, 401(k) fee costs are more a function of size: how big a plan is, how big the average contribution is, and how big the plan funds are. Large plans, which the PSCA defines as 5,000 or more participants, pay sharply lower 'institutional' fees than smaller plans pay." (U.S. News & World Report)
Employee Job Satisfaction Linked to Benefits Education
"More than one-quarter of employed adults say that morale has declined in last year. And a majority of employees would bolt their current employer if offered comparable pay and benefits elsewhere, according to a new report." (Treasury & Risk)
[Official Guidance] Text of IRS Notice 2012-46: Notice Requirements Under Section 101(j) of ERISA for Funding-Related Benefit Limits in Single-Employer Defined Benefit Pension Plans (PDF)
"This notice provides guidance in the form of questions and answers with respect to the notice requirements of section 101(j) of [ERISA], which requires that notice be provided to participants and beneficiaries relating to certain limitations on benefits in pension plans imposed under section 206(g) of ERISA, as added by the Pension Protection Act of 2006 ... This notice is effective on ... [the first day of the first calendar month following 90 days after publication of this document in the Internal Revenue Bulletin; it is scheduled to appear in IRB 2012-30, which will be dated July 23, 2012]. However, the plan administrator may rely on the provisions in this notice before that date. The plan administrator may also apply a reasonable interpretation of section 101(j) of ERISA before that date." (Internal Revenue Service)
A 14-Month Effort to Answer One Question: Can Shopping for Insurance Be Easy?
"Right now, buying health insurance is anything but. Americans find it one of the most difficult things to purchase. Every year, branding firm Seigel + Gale ranks industries by 'brand simplicity,' a measure of how easily consumers understand the product being sold. Every year, health insurance comes in at the very bottom. Eight foundations came together about a year ago, aiming to fix that." (The Washington Post; free registration required)
Second Look at Headline Grabbing 401(k) Fee Survey Reveals Major Questions
"Several of the articles ... despite the grave headlines, began to isolate some of the cracks in the analysis. The Demos report referenced data from both the Investment Company Institute, a national trade association located in Washington D.C. that represents mutual funds and other registered funds and which regularly surveys 401k plans using mutual funds, and BrightScope, Inc., a 401k rating firm located in San Diego. Both groups took exception to the report's use of their data." (Fiduciary News)
[Guidance Overview] On 401(k) Plan Brokerage Windows and Participant Fee Disclosures (PDF)
"No doubt these 'last minute' rules have surprised many plan administrators and service providers. ? As compliant disclosures for brokerage window fees are being finalized, plan administrators and service providers should seek to demonstrate that initial disclosures have been prepared based on a reasonable interpretation of the 404a-5 regulations, consistent with the good faith standard included in FAB 2012-02, Q&A # 37." (Kelly, Hannaford & Battles P.A.)
[Guidance Overview] 2012 W-2 Reporting of Health Care Coverage Costs
"The IRS has issued Notice 2012-9 providing W-2 reporting requirements for 2012 W-2 forms ... The IRS is providing reporting transition relief for: 1) employers who will file less than 250 W-2 forms in the prior calendar year, 2) stand alone dental/vision plans, 3) health reimbursement arrangements, 4) multiemployer plans, 5) self-insured plans that are not subject to COBRA (i.e. church plans), 6) relief with respect to certain forms W-2 furnished to terminated employees before the end of the year, and 7) certain employers with respect to coverage under an employee assistance program, on-site medical clinic or wellness program.... Below is a chart that outlines the provisions of Notice 2012-9." (TRI-AD)
[Guidance Overview] Employee Benefits Developments, May 2012
Covers recent rulings, opinions, and cases. Articles in this issue include: Release Protects TPA From Negligent Misrepresentation Claim; Estate May Sue to Enforce Waiver and Recover 401(k) Benefits; Separation Policy Benefit Is Not an 'Early Retirement Subsidy' Subject to QDRO; Employer Is Not Liable for Allegedly Ambiguous Summary Plan Description; Acquired Employees Were Properly Denied Shutdown Benefits; PBGC Asserts Liability Against Foreign Control Group Member; Court of Appeals Holds That Union May Be Required to Reimburse Employer for Withdrawal Liability Associated With Multiemployer Plan. (Hodgson Russ LLP)
[Guidance Overview] May 11 FAQs Provide Additional Guidance on SBCs
"Here are some of the topics which are addressed: FAQ 1: Expanding on the circumstances in which an SBC may be provided electronically (discussed in a previous FAQ), the DOL has added a new safe harbor for providing SBCs electronically to participants and beneficiaries in connection with their online enrollment or online renewal of coverage under the plan. FAQ 7: The DOL clarifies that it is permissible to 'combine' SBCs or SBC elements to provide a side-by-side comparison to facilitate comparisons of different benefit package options by individuals shopping for coverage." (Faegre & Benson LLP)
DOL in Fee Disclosure Guidance on Brokerage Windows Is 'Surprising', Experts Say
"Question 30 asks whether an investment platform offered by a retirement plan is considered a designated investment alternative when the platform includes many registered mutual funds of multiple fund families to which participants and beneficiaries may direct the investment of assets held in or contributed to their individual accounts. It adds that although the plan fiduciary selected the platform provider, the fiduciary did not designate any of the funds on the platform as 'designated investment alternatives' under the plan. The DOL responded by saying that although the regulation does not specifically require a plan to have a particular number of designated investment alternatives, the failure to designate a manageable number of investment alternatives raises questions as to whether the plan fiduciary has satisfied its obligations under section 404 of [ERISA]." (planadviser)
Public Sector Defined Contribution Plans: Rising to the Challenge of the New Fee Disclosure Requirements
"According to the NAGDCA DC Survey about two-thirds (64.7%) of plan sponsors said they have or will develop a communication regarding plan fees, 25% were not sure, and 10% did not intend to (presumably relying on an outside source for this). More than a third (38.6%) said they didn't know whether such disclosures would cause participants to migrate to lower cost options, but the majority thought the disclosures would not result in a change to the fund lineup or a change to the fee structure. More than three quarters (77.9%) believed that their plan providers would comply with the new DOL regulations regarding fee disclosure for their non-ERISA plans, while the remaining (22.1%) were unsure." (National Association of Government Defined Contribution Administrators)
[Guidance Overview] DOL FAQs Address Implementation of Participant-Level Fee Disclosures
A detailed overview of the May 7 FAQs, nicely organized by topic. (Proskauer)
[Official Guidance] DOL Reopens Comment Period for Target-Date Fund; Invites Comments on SEC Study (PDF)
"In November 2010, the [DOL] published a proposal to amend its qualified default investment alternative regulation (29 CFR 2550.404c-5) and participant-level disclosure regulation (29 CFR 2550.404a-5). The comment period for the proposal originally closed on January 14, 2011. The proposal includes more specific disclosure requirements for TDFs, based on evidence that plan participants and beneficiaries would benefit from additional information concerning these investments.... As part of its regulatory process, the [SEC] recently engaged a consultant to conduct investor testing of comprehension and communication issues relating to TDFs. A report presenting the findings of this research on individual investors' understanding of TDFs and related fund advertisements is publicly available on the [SEC web site at http://www.sec.gov/comments/s7-12-10/s71210-58.pdf].... [DOL] invites additional comments on the TDF proposal in light of this new research." (Employee Benefits Security Administration)
[Guidance Overview] Compliance Checklist 2012 for ERISA-Covered Defined Benefit Plans, Defined Contribution Plans and 403(b) Plans(PDF)
Very nice 42-page chart. (Prudential)
[Guidance Overview] Compliance Checklist 2012 for Non-ERISA Plans: Qualified Governmental and Nonelecting Church Plans, Non-ERISA 403(b) Plans, 457 Plans and Nonqualified Executive Benefit Plans (PDF)
Very nice 16-page chart. (Prudential)
[Guidance Overview] DOL Makes Small Changes to Field Assistance Bulletin 2012-02 (Participant Disclosure FAQs)
"DOL revised its response to Q-19 regarding website performance information, making clear that a website in connection with a variable return DIA should be updated to show 1-, 5-, and 10-year performance information for the period ending on the most recently completed calendar quarter." (Groom Law Group)
[Guidance Overview] Plan Sponsors Working Diligently and in Good Faith on Summary of Benefits and Coverage Will Not Face Penalties During First Year
"The Departments will not impose penalties for failure to provide an SBC or Uniform Glossary on plans and issuers that are working diligently and in good faith to comply.... Plan sponsors with 'carve-out' arrangements, such as a carved-out outpatient prescription drug program or mental health program, may provide multiple partial SBCs during the first year, as long as the multiple SBCs together provide all relevant information to meet SBC content requirements.... The Departments will not enforce penalties for failure to provide an SBC with respect to expatriate coverage during the first year of applicability." (The Segal Company)
[Guidance Overview] Court of Appeals Rejects Equitable Remedies When SPD Promises More Generous Benefits Than Pension Plan Document
"In some ways, the Ninth Circuit's recent decision in Skinner v. Northrop Grumman Retirement Plan B is a garden-variety example of a classic fact pattern: the terms of a summary plan description ('SPD') promise better benefits than the plan document it summarizes, and participants sue for the difference. Skinner demands our attention, however, because it is the first decision by a federal court of appeals to interpret the Supreme Court's most recent high-profile decision on ERISA remedies: CIGNA Corp. v. Amara." (Spencer Fane)
[Opinion] Text of Morningstar Comment Letter to SEC on Need for More Disclosure to Investors in Target-Date Funds
"Target-date funds are quickly becoming Americans' primary -- if not only -- retirement-savings tool, so it's critical that investors understand how these dynamic funds are run. Also, plan sponsors, researchers, and fiduciaries need more data to evaluate target-date series side by side. Morningstar's specific suggestions for how to improve the funds' disclosure follows in the text of the letter." (Morningstar)
[Guidance Overview] EBSA Makes Small Clarifying Correction to FAB 2012-02 FAQs on Participant-Level Fee Disclosure
From an EBSA email distributed on May 17: "The Department of Labor's Employee Benefits Security Administration made a technical correction to recently released Field Assistance Bulletin No. 2012-02, which contains frequently asked questions and answers about the Department's participant-level fee disclosure regulation (29 CFR section 2550.404a-5). It has come to the Department's attention that, as initially released on May 7, 2012, a sentence in the answer to Question 19 concerning quarterly Web site updates to 'average annual total return' information inadvertently referred to the most recently completed calendar 'year' rather than the most recently completed calendar 'quarter.' The Department corrected this error on May 17, 2012 in order to accurately restate the requirements of the regulation. The word 'calendar' also was removed from the phrase '... 10-calendar year periods ...' in the same sentence. See Q-19, n.2." (Employee Benefits Security Administration)
[Guidance Overview] 9th Circuit Case Addresses Equitable Remedies Post-Amara and Says Mere Violations of Law Do Not Establish 'Harm' Creating Equitable Remedies
"Plaintiffs [in Skinner v. Northrop Grumman Retirement Plan B] argued the plan documents should be reformed to match the terms of the 2003 SPD. The Court held that reformation is appropriate only in cases of fraud or mistake. The Court found there was no evidence that: (a) the Plan participants were intentionally and materially misled, or that (b) plaintiffs actually relied on purportedly misleading information." (Lane Powell)
Six Smart Steps to Get Your Employees Ready for Retirement
"You need to communicate differently with a 25-year-old than with a 62-year-old. The older worker doesn't need to hear about the benefits of a company match. If you're looking to change behavior, make it easier. For example, call a meeting to explain how to enroll, and then let employees check a box on a card so you can enroll them. Don't make them do it themselves later -- they may never do it." (Business Management Daily)
[Official Guidance] Form W-2 Reporting of Employer-Sponsored Health Coverage: IRS Informational Page Updated May 2, 2012
"The chart ... illustrates the types of coverage that employers must report on the Form W-2. Certain items are listed as 'optional' based on transition relief provided by Notice 2012-9 (restating and clarifying Notice 2011-28)." (Internal Revenue Service)
DOL Begins Enforcing the ACA Through Plan Audits
"Generally, plan sponsors and administrators must be able to demonstrate that their plans comply with the ACA, which requires documentary evidence -- from plans, record keepers, and/or service providers. Written records of the steps taken to comply with the ACA since September 23, 2010, including detailed records of participation information and communications with participants about enrollment periods and coverage, should be retained in a readily accessible fashion. For example, plans should keep and be able to produce notices of coverage for children up to 26 years of age, and evidence of distribution. Likewise,any plan amendments or written policies that were adopted to implement the ACA mandates discussed above should be ready for production." (Proskauer Rose LLP)
[Official Guidance] Text of CCIIO Announcement on Medical Loss Ratio Rebate Notices, Reminding Health Insurers of August 1 Deadline (PDF)
"[The final regs require] an issuer to provide information in the form of a rebate notice to enrollees who are owed rebates, regardless of the form in which the rebate payment is made (e.g., check or future premium credit).... CMS has developed a standard form for the rebate notice that each issuer must send by August 1 of the following year to enrollees entitled to a rebate based upon the prior MLR reporting year. For example, notice of rebates based on the 2011 MLR reporting year must be provided by August 1, 2012.... Please refer to the Medical Loss Ratio (MLR) Rebate Notice Instructions at http://www.cciio.cms.gov/resources/other/index.html#mlr for the complete set of instructions." (Centers for Medicare & Medicaid Services, Center for Consumer Information and Insurance Oversight)
Educational Web Page on Retirement Plan Fees Comes Online from The Principal
"The online resource offers: [1] An explanation of retirement plan costs; [2] Tips on how to review plan services; [3] Help navigating cost considerations; [4] Tips for evaluating fee reasonableness; [5] Tips for addressing participant questions[.] The Principal also offers a new Fee Reasonableness Review Checklist, a sample template financial professionals can share with plan fiduciaries to help guide them through the evaluation process." (The Principal Financial Group)
[Opinion] Combination of Fee Disclosure DOL Regs and 'Strict Liability' Under Code Section 4975 Might Be Explosive
"Though [it is possible to] get lost in the detail of timely meeting the new disclosure requirements, the real impact will occur once the dust settles, and when [there are] all manner of prohibited transactions -- arising either from failure to properly disclose compensation or from what is revealed by the disclosure itself.... [One] of the most serious of the impacts of 408b2 promises to arise from application of Code section 4975, not from ERISA Section 406 to which 408b2 is connected.... Once the prohibited transaction occurs, the tax liability attaches, and there is a duty to report and pay that tax. The IRS has no ability to waive that tax -- unlike the prohibited transaction penalty under ERISA." (Business of Benefits)
Time's Up on 401(k) Fee Disclosure Compliance: New Potential Breaches of Fiduciary Duty Looming
"[Ian Dingwall, EBSA's chief accountant,] suggested that auditors call their clients to make certain that they, as plan fiduciaries, have a list of service agreements and know which ones are not in writing by July 1. A service agreement that is not in writing is not considered �reasonable� under the DoL regulations, and therefore results in a prohibited transaction.... Putting plan auditors in the position of enforcer of the service-provider disclosure requirement is beyond the scope of an auditor�s responsibility." (CFO)
[Guidance Overview] HHS Notice Addresses Rules for Insurers That Meet or Exceed Medical Loss Ratio Standards
"The extended notice requirement will hopefully reduce confusion that may have otherwise occurred when some individuals received rebates and others, in different insurance plans, did not. Importantly, the electronic disclosure rules for providing SBCs, which are referenced in the extended notice requirements for MLRs, were recently addressed in DOL frequently-asked-questions[.]" (Practical Law Company)
[Guidance Overview] FAQs on Summaries of Benefits and Coverage Address Electronic Distribution and Coverage Example Calculator
"Although the latest FAQs do not delay the fast-approaching compliance date for providing [Summaries of Benefits and Coverage, or "SBCs"], plans, plan sponsors and insurers may nonetheless welcome the first-year policies provided in the new guidance. In particular, the rule permitting partial SBCs for plans with multiple insurers may be helpful in preparing initial SBCs, though the FAQ also underscores challenges for later years when information from separate insurers must be combined in the same SBC. In addition, plans and insurers may want to document their SBC compliance efforts in case they wish to use the Departments' one-year good faith compliance policy." (Practical Law Company)
[Guidance Overview] DOL, HHS and Treasury Guidance on SBC Requirements Provides Compliance Exceptions During First Year
"[T]he agencies acknowledged the administrative difficulties for issuers and plans in some circumstances to provide such summaries. [For example, in] discussing a question about health plans that use two or more issuers to provide various types of coverage, the departments said issuers have no obligation to provide coverage information for benefits that it does not insure, but that group health plans �are responsible for providing complete SBCs with respect to a plan.�" (Bloomberg BNA)
[Guidance Overview] Final EBSA Fee Disclosure Requirements Addressed in Field Assistance Bulletin 2012-02
"The [Field Assistance Bulletin (FAB)] contains 38 questions and answers relating primarily to participant-level disclosure but also addressing service provider disclosure. It includes many helpful and practical solutions to uncertainties in the final disclosure regulations. It is clear from the text of the FAB that the DOL has no intention of extending either of disclosure deadlines. However, in Q&A 37, the DOL recognizes that many service providers and plan administrators may have initiated or even made disclosures prior to publication of the FAB based on interpretation of the regulations and may be unable to modify their disclosures by the deadlines without unreasonable difficulty or cost." (Warner Norcross & Judd LLP)
[Guidance Overview] FAB Addresses Investment Disclosures to Participants About a Plan's Designated Investment Alternatives
"Do the investment disclosure requirements apply to alternatives closed to new investments? Yes. If participants are allowed to retain current investments in a given fund, then the comparative chart of investments must include the fund, even though participants cannot move money into the fund. The plan administrator could (but need not) limit the disclosures to those participants invested in the fund." (SunGard Relius)
[Opinion] Text of Comments to IRS by Pension Action Center Urging IRS to Retain Strict Requirement of Providing Notices to Separated Plan Participants
"The Pension Action Center is writing to comment on the letter sent to your office by [ASPPA], dated December 20, 2011. ASPPA requested clarification of the Internal Revenue Code's notice requirement for separated plan participants who are listed on IRS Form 8955-SSA. ASPPA argued that plans should not have to provide separate notices of deferred vested pensions to plan participants because plans already satisfy this notice requirement with 'benefit statements and other documents.' The Pension Action Center strongly disagrees with ASPPA's interpretation[.]" (Pension Action Center, Gerontology Institute of the University of Massachusetts Boston)
PBGC to Request Comments on Information Collection for Locating and Paying Participants
"The collection consists of information participants and beneficiaries are asked to provide in connection with an application for benefits. In addition, in some instances, as part of an effort to identify participants and beneficiaries who may be entitled to benefits, the PBGC requests individuals to provide identifying information that the individual would provide as part of an initial contact with the PBGC. All requested information is needed to enable the PBGC to determine benefit entitlements and to make appropriate payments." (Wolters Kluwer Law & Business / CCH)
Good-Faith Efforts Already Taken to Comply with Participant Fee Regs Won't Be Penalized, EBSA Says
"[Phyllis C. Borzi, assistant secretary of labor for the Employee Benefits Security Administration] said plans that have already distributed, or are getting ready to distribute, their participant-level fee disclosures under Section 404(a) of [ERISA] will not be subject to DOL enforcement action if they acted in good faith to comply with the rule [prior to the recent issuance by the EBSA of 'Frequently Asked Questions' about the fee disclosure regulations].... However, Borzi cautioned that plans that discover they were not in totally in compliance with the participant disclosure rule in light of the FAQs will need to develop a plan to comply with the law before their next participant disclosure." (Bloomberg BNA)
[Guidance Overview] DOL Addresses Definition of Designated Investment Alternatives for Purposes of Required Participant Fee Disclosures
"The issue that has generated more attention and discussion regarding both the participant (404a-5) and the service provider (408b-2) regulations is the issue of what constitutes a designated investment alternative (DIA).... The issue is significant because an employer annually must provide participants a significant amount of investment information with respect to each DIA. Furthermore, under the 408b-2 regulations, a covered service provider that provides a platform of DIAs in connection with recordkeeping or brokerage services would need to make annual investment disclosures about the DIAs to the plan fiduciary. In this technical update, [the authors] discuss clarifications of the definition of a DIA provided by the recently released FAB 2012-2." (SunGard Relius)
Current Challenges and Best Practices Concerning Beneficiary Designations in Retirement and Life Insurance Plans (PDF)
"The complexity of the rules under ERISA may, in some cases, lead to beneficiary designations that do not accurately reflect the participant's intent, and can frequently result in disputes over who is entitled to ERISA plan benefits following the death of the participant.... [E]ven when the beneficiary designation correctly indicates the participant's intent, beneficiaries may be unaware of what to do to obtain the benefit or to determine the benefit to which they are entitled.... The Council is examining this topic and intends to draft recommendations to the Secretary of Labor for consideration." (2012 ERISA Advisory Council)
[Guidance Overview] Preauthorization of Surgical Procedure Not Covered by the Plan Was Not a Fiduciary Breach
"This case is another example of how participants may be left without a remedy for harm caused by the actions of a plan fiduciary. The U.S. Supreme Court's decision last year in Cigna v. Amara ... suggested that courts may be more inventive in using equitable principles to fashion remedies for fiduciary breaches. However, this court found no breach of fiduciary duty and therefore did not address the issue of remedies." (Thomson Reuters/EBIA)
[Guidance Overview] COBRA Notice Deadline Runs from Employment Termination Date
"This case illustrates COBRA's general rule that the deadline for providing an election notice runs from the date of termination, even if plan coverage extends beyond that date. The statute does provide an alternative, however. If the plan so provides, the notice period (and the maximum coverage period) may instead run from the date that coverage is lost. Given the court's silence on this point, we assume the plan in question was not written to take advantage of this delayed notice rule. The case also contains a helpful discussion of the factors that a court may consider in deciding whether to award attorney's fees or unreimbursed medical expenses incurred during the violation period." (Thomson Reuters/EBIA)
[Guidance Overview] DOL FAQs Address Implementation of Participant-Level Retirement Plan Fee Disclosures
"These long and detailed FAQs underscore the complexity of the new disclosure requirements.... The DOL also indicated that it is working on a second set of FAQs focused on the service provider fee disclosures. As a reminder, calendar-year plans are required to make their initial annual disclosure to participants no later than August 30, 2012 and provide their first quarterly statements no later than November 14, 2012." (Thomson Reuters/EBIA)
[Official Guidance] Agencies Revise Summary of Benefits and Coverage Template and , Sample Completed SBC, and Coverage Example Calculations
Q&A 14 in Part IX of "FAQs About ACA Implementation" explains the changes: "In the diabetes treatment scenario, the version originally posted contained a typographical error, listing the allowed amount for insulin as $11.92, rather than $119.20 -- a difference that impacts the total cost of care for diabetes in the coverage example calculations. To correct this error, the Departments have posted updated versions of the SBC template, the sample completed SBC, and the guide for coverage examples calculations - diabetes scenario. The updated SBC template and sample completed SBC also include sample taglines for obtaining translated documents ... as well as updated Sample Care Costs amounts for the diabetes coverage example, due to more accurate rounding in making these calculations. Finally, the updated versions include some appearance modifications (such as changes in bolding, underlining, shading, capitalization, margin justification, use of hyphens, and row and column sizing) to ensure the document is accessible to individuals with disabilities, consistent with section 508 of the Rehabilitation Act. Plans and issuers may use either version, or may make similar modifications to their own SBCs, without violating the appearance requirements for an SBC. The updated versions of these documents are labeled �corrected on May 11, 2012� in the lower right corner of the first page and are available at www.dol.gov/ebsa/healthreform and cciio.cms.gov. These three documents replace the prior versions issued contemporaneously with the final regulations in February 2012." (Employee Benefits Security Administration)
[Official Guidance] Text of Final CMS Regs for Medical Loss Ratio Requirements (PDF)
"[T]his final rule establishes a simple, straightforward notice requirement for health insurance issuers that meet or exceed the [Medical Loss Ratio, or 'MLR'] standards established by the Affordable Care Act, but only requires the notice for the 2011 MLR reporting year, the first year that the MLR rules are in effect, and does not require issuers to include information about the current or prior year MLR. The notice will direct enrollees to the HHS Web site for specific information about issuers' MLRs." (Centers for Medicare & Medicaid Services)
[Official Guidance] Affordable Care Act Implementation FAQs -- Set 9 -- The Summary of Benefits and Coverage
"[Question]: A previous FAQ provided a link where written translations for the SBC template and the uniform glossary would be available in the future. Are these translations available? [Answer]: Written translations in Spanish, Chinese, and Tagalog are now available. Navajo translations will be available shortly." (U.S. Centers for Medicare & Medicaid Services, The Center for Consumer Information and Insurance Oversight)
Outreach Methods by Employers Failing to Motivate Employees to Save for Retirement
"Employers and their employees in the U.S. hold different perspectives on how to achieve retirement preparedness through 401(k) plans ... [D]espite efforts by employers to educate workers on the 401(k) offering, most workers remain disengaged and unprepared financially for retirement.... Relatively few 401(k) participants have the desire to manage their workplace savings plan ... [and] many employers are doubling down on outreach efforts that have not been effective:" (Society for Human Resource Management)
[Guidance Overview] DOL FAQs Address Retirement Plan Fee Disclosures (PDF)
"DOL acknowledges that it may be unduly difficult or expensive to bring such disclosures into compliance ... before the Regulations' respective effective dates [so the agency stated that] it generally will take no enforcement action against a covered service provider or plan administrator who has acted in good faith based on a reasonable interpretation of the Regulations and who also establishes a plan for complying with the requirements ... in future disclosures.... The Bulletin provides additional guidance with respect to the following topics:" (Sutherland)
[Guidance Overview] Describing Plan Administration Expenses When Making Participant Fee and Investment Disclosures
"Plan administrators annually must furnish an explanation of any fees and expenses for general plan administrative services (e.g., legal, accounting, recordkeeping), which may be charged against a participant's individual account, as well as the basis on which such charges will be allocated (e.g., pro rata, per capita) to, or affect the balance of, each individual account. The DOL explained that the annual administrative expense disclosure may be expressed in terms of an amount, formula, percentage of assets or a per capita charge, but must be written in a manner calculated to be understood by the average plan participant. How specific the disclosure must be depends on the facts and circumstances of the service and the fee or expense being disclosed." (SunGard Relius)
[Guidance Overview] DOL FAQs Clarify Participant-Level Disclosures, 'Good Faith' Standard for Enforcement Purposes
"The [ERISA section 404(c)] disclosure conditions -- which were effective for plan years beginning after November 1, 2011, and are therefore already in effect for many plans -- generally operate by reference to the participant disclosure rules. With the delay in the initial disclosure date, it was unclear whether the failure to provide the initial disclosures after the effective date of the section 404(c) changes would be considered noncompliance with the section 404(c) rules. DOL has now clarified that a plan need not furnish the participant disclosure information before it must be furnished under the new regulation to maintain section 404(c) status." (Morgan Lewis)
Reviewing Your 401(k) Plan's Hardship Distribution Procedures
"Once the plan document sufficiently provides for hardship distributions, the main traps for the unwary administrator are the failure to follow the terms of the plan and the failure to adequately document the decision to grant (or deny) the request for a distribution. Your documentation of each decision should include: The participant's application with the participant's written representations as to the hardship involved and whether other resources have been exhausted; and Your determinations regarding (i) whether the participant has an immediate and heavy financial need, (ii) whether the need can be met by other resources reasonably available to the participant, (iii) whether the amount to be distributed is not in excess of the amount needed, and (iv) the source of the distribution." (Chang, Ruthenberg & Long PC)
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