"Although the most detailed piece of the package -- the best practices summary -- is framed as applying to plan service providers (such as recordkeepers and administrators), enforcement actions already implemented suggest that these standards likely also apply to plan-related information maintained by the plan fiduciary.... [P]lan sponsors and fiduciaries should be aware that this cybersecurity guidance likely applies to all plans governed by ERISA, not just retirement plans."

"The FAQs clarify that plans can provide participants with multiple [lifetime income illustrations (LIIs)].... This clarification may be helpful for plans that want to deliver various LIIs that, for example, take future contributions or in-plan annuity options into account. However, DOL has not extended the SECURE Act's fiduciary safe harbor for LIIs to any LIIs other than those meeting the requirements of the IFR."

"[T]he SECURE Act changed the rules that permitted 401(k) plans to exclude individuals who worked less than 1,000 hours in the plan year.... [Unanswered questions include:] Can an equivalency method be used for counting service? How should a plan handle any missed deferral opportunities for [long-term part time (LTPT)] employees? Will LTPT employees be counted as 'participants' for purposes of the Form 5500? Will the LTPT rules apply to 'grandfathered' governmental plans? Will the LTPT rules apply to church 401(k) plans?"

"Plan administrators should work with their carriers or third party administrators to ensure that such recordings are retained for the relevant limitations period, and are disclosed upon request, even if the recordings were not relied upon in denying the claim."

"Participant directed plans ... generally must furnish lifetime income disclosures by the benefit statement for the second quarter of 2022 ... For plans that do not allow for participant-directed investment, lifetime income disclosures must be included in the benefit statement for the first plan year ending on or after September 19, 2021, which ... for calendar year plans ... must be furnished no later than October 15, 2022."

"The DOL acknowledges that 'many retirement plans have been providing various types of illustrations for several years.' The DOL notes that the ages in the interim final rule must be used for lifetime income disclosures, but that plan administrators may provide participants with additional lifetime income illustrations[.]"

"If you are a plan sponsor or you are working with a plan sponsor that has a qualification failure that does not neatly fit within the safe harbor guidelines of EPCRS and you are not sure that you want to reveal your identity to the IRS in a VCP application, you should act fast and file an anonymous VCP application as soon as possible. The last day to file such an application is December 31st[.]"

"[According to Tim Hauser, Deputy Assistant Secretary for National Office Operations at EBSA, the] most detailed proscriptive best practices in the recent DOL guidance were aimed at recordkeepers and 'those running the systems' -- and the DOL has higher expectations on cybersecurity practices among those organizations. Costs/risk exposure are a relevant consideration -- the [DOL] would expect quite a bit more of those who have more data, and more exposure."

"When an arbitration provision is found in an ERISA plan document itself, courts have applied state-law principles when evaluating whether the plan document contains a binding agreement to arbitrate between and among the plaintiff, the plan itself and the defendants named in the lawsuit. Yet these courts have either ignored, or not adequately addressed, the fact that ERISA itself contains rules for contract formation. The ERISA rules for contract formation -- and not state-law principles -- might govern whether an agreement to arbitrate exists in an ERISA plan document."

"Nearly 70% of HR professionals surveyed felt a contemporary ben admin system can help employees better understand their benefit options.... 66% of HR professionals surveyed reported that a contemporary ben admin system improved the relationship between HR and the rest of the organization.... 63% of HR professionals feel a contemporary ben admin system can help employees feel better connected to their healthcare experience."

"What is the value of an adviser to record keepers? The overwhelming answer is that advisers sell the plan. They represent a sales force of almost 300,000 with personal relationships with plan sponsors. Providers do not have to recruit, manage or pay these advisers directly. Everything else is ancillary."

"Rev. Proc. 2021-30 updates EPCRS, making several major changes and other revisions to the correction programs. [This page provides] highlights of some of these changes.... The Treasury Department and the IRS invite comments from the public on how we can improve EPCRS."

"Begin with a solid working knowledge of the current cybersecurity threat landscape.... Develop and document a formal cybersecurity program.... How does your service provider selection process investigate an entity's ability to adequately protect data it will create, receive, transmit, or maintain on behalf of your employee benefits program? ... What level of oversight do your service provider agreements allow so that you can ensure the providers' security policy and procedure compliance? ... Train (and retrain) your employees at least annually."

"[T]he most significant changes to EPCRS relate to the correction of plan overpayments.... [T]he Revenue Procedure has been revised and reformatted to include helpful clarifications relating to the long-standing return of overpayment method, as well as two new correction methods that plan sponsors may use to correct defined benefit plan overpayments."

"[A chart] shows the key changes from the prior version of EPCRS that are effective beginning July 16, 2021, except as otherwise noted."

"The increased flexibility of this retroactive plan amendment self-correction option, coupled with the extension of the two-year self-correction period for significant operational failures to a three-year period, is a boon for plan sponsors looking to correct operational failures under their plans and that ... otherwise would have been required to submit a formal application to the IRS under the Voluntary Correction Program (VCP) -- including the payment of a VCP user fee of up to $3,500 -- to obtain the IRS's approval of a proposed correction."

"[P]lans that must issue quarterly statements under ERISA Section 105(a)(1)(A)(i) can incorporate their first lifetime illustration on any quarterly statement up to the second calendar quarter of 2022, which ends June 30, 2022.... For [non-participant-directed] plans, the lifetime income illustrations must be on the statement for the first plan year ending on or after September 19, 2021."

"While it is understandable that plan sponsors, prompted by advisers and attorneys, would want their service providers to provide more and better information, the absence of a basic understanding of cybersecurity could result in requests that could inadvertently create greater risks. Service providers recognize the right of plan sponsors to confirm that their participants' data are protected, but have legitimate concerns that some of the information requested, if it becomes more widely available, could help cybercriminals breach systems, thus undermining that very security."

"[The Ninth Circuit] vacated the district court's holding that state-law professional and negligent misrepresentation claims were preempted.... The plaintiffs, utilizing [a benefits portal provided by the plan recordkeeper, had] requested statements showing their monthly pension benefit based on participant-entered assumptions. The statements created using these assumptions grossly overestimated the benefits to which they were entitled." [Bafford v. Northrop Grumman Corp., No. 20-55222 (9th Cir. Apr. 15, 2021)]

"To date, eleven class action lawsuits have been filed asserting ERISA violations for the failure to pay actuarially equivalent pension benefits. To date, all lawsuits in this area have involved corporate pension plans. The vast majority survived motions to dismiss in jurisdictions around the country[.]"

"Fifty-eight percent of sponsors surveyed ... said their organization has been using its DC plan recordkeeper for more than seven years, and another 12.3% said it has been more than five years but less than seven. So the timing may be right for these sponsors to take a fresh look at the dynamic recordkeeping marketplace and how it has changed since they last did a request for proposals (RFP)."

"The AICPA postponed the mandatory effective date of the new audit standard, SAS 136, until next year, but the DOL had already updated Form 5500 to incorporate the new reporting rules. So now what?"

"Besides the specter of a DOL enforcement action, this guidance should remind plan sponsors that if a cybersecurity breach ever impacts their plan, they need to be prepared. Class action lawsuits that argue that they chose the wrong service provider or that PII was misused or not protected are possible. Service Providers like recordkeepers, TPAs, and advisors will likely be inundated with requests to divulge the precise details of their cybersecurity and information security practices."

"In its latest EPCRS update, the IRS has made some administrative revisions as well as important changes including: [1] an expanded Self Correction Program (SCP), including an extension of the general correction period, [2] updates to the rules for recovering overpayments, and [3] changes to the anonymous Voluntary Correction Program (VCP) submission process. These changes are generally effective July 16, 2021[.]"

"[DOL Information Letter 06-14-2021] emphasizes that information is relevant if it was generated in the course of making the benefit determination, regardless of whether it was relied upon in making the benefit determination. Thus, contrary to the plan's claim, whether the information was created, maintained, or relied upon for claim administrative purposes is immaterial."