Plan Sponsors Need To Vet Any TPA Referral They Get .
It's important.

One of the most important things that a plan sponsor needs to do is hire a third-party administrator (TPA) to help them handle the day-to-day of plan administration, compliance testing, and annual Form 5500 filing. Yet most plan sponsors don't vet TPAs before they hire them, often relying on the advice of a financial advisor who may not understand what a TPA does and why there is a need to hire a good one. This article is all about letting plan sponsor understand their need to vet their potential TPA and understand there is a different level of service between TPAs before it's too late.

To read the article, click here.
What is new under the sun. 

I've been watching soap operas since I started watching Dallas as a 12-year-old in 1984. I've been a faithful viewer of The Bold and The Beautiful for the last few years and on and off since 1989. Life these days feel like a bad soap opera. However, as the world turns, the Internal Revenue Service (IRS) and the Department of Labor (DOL) have issues some changes that will affect retirement plans that you should be aware of.

To read this article, please click here.
The New E-Disclosure Rules For ERISA Retirement Plans .
They can't be a fool.

It's 2020 and for the past 20 years, we have been moving to a paperless "society" for billing, mail, and other forms of communication. Even the retirement plan documents I draft for my clients are sent via email. Unfortunately, the government in terms of required notices under ERISA were very slow in allowing for electronic communication between plan sponsors and participants. Thankfully, it appears the days where retirement plan sponsors and third-party administrators (TPAs) have to rely on paper notices only have ended. Thanks to the Department of Labor (DOL), it seems we finally arrived in the 21st century. On May 27, 2020, the Department of Labor ("DOL") published a final rule that allows retirement plan administrators to use an electronic method of delivery for required disclosures to participants in their retirement plans. This new rule will end saving a lot of paper and hundreds of millions of dollars nationally.

To read the article, please click here.
Participants raid their retirement accounts.
It was bound to happen.

I had said that one of the problems with the coronavirus and the CARES Act is that participants would raid their retirement accounts, especially if they were terminated. Of course, I was right.
A new survey by MagnifyMoney found that 30% of Americans have raided their retirement accounts for early distributions and the majority of those who have done it, used it to spend on groceries.

The survey found that 47% of savers have either stopped or lowered their retirement savings contributions amid the coronavirus pandemic. 21% have reduced their contributions, while 26% have stopped saving altogether. 3 in 10 participants have withdrawn funds from their accounts within the last two months. Another 19% said that they plan on doing so but haven't yet.
This comes as absolutely no shock because when times are tough, people raid their retirement accounts because so many Americans live hand to mouth.

Picking the cheapest provider can be a breach of fiduciary duty
.
It can.
 
When it comes to health and fitness, you constantly hear studies about what foods fight or cause cancer. Of course, those studies are then debunked. I remember how oat bran was cited to cut down on cholesterol and how margarine was better than butter. Plus I have heard how coffee can prolong life or kill you. I joked that one study will suggest that constantly eating broccoli will cause cancer too.

I blogged once about how the paranoia in me figures that a plan provider that quickly cuts down their fee might have been overcharging the client, to begin with. People tend to think I have a bias against plan providers such as third party administrat ion (TPA) firms and I certainly don't because I see the overwhelming value of a good TPA.

With fee disclosure regulations around for 8 years and constant news articles about 401(k) fees, I think the fascination and concentration on fees could be detrimental if that is the major or sole criteria in selection plan providers.

401(k) plan sponsors, as plan fiduciaries have important responsibilities. These responsibilities include:

Acting solely in the interest of plan participants and their beneficiaries and with the exclusive purpose of providing benefits to them; carrying out their duties prudently; following the plan documents (unless inconsistent with ERISA); diversifying plan investments, and paying only reasonable plan expenses.

While paying unreasonable plan expenses is a breach of fiduciary duty, picking providers solely or mainly because they are low in fees can also breach a fiduciary duty. Retirement plan sponsors also have a duty of prudence as one of their fiduciary duties. Prudence is about the process of making fiduciary decisions. Prudence requires the plan fiduciaries to document decisions and the basis for those decisions. So in hiring any plan provider, a fiduciary should survey several potential providers. By doing so, a fiduciary can document the process and make a meaningful comparison and selection.

Governmental contracts are typically decided by the lowest bidder. Sometimes it works, lots of times it doesn't. The same thing goes with selecting plan providers. There are many low-cost providers out there and some do a very good job and some do not. Some low-cost TPAs may be good if there is a limited amount of work on a 401(k) plan that has a safe harbor design and terrible if the plan requires a discrimination test.

Paying only reasonable expenses is not the same as paying low expenses. Plan provider expenses are less about cost and more about value. A financial advisor charging 15 basis points providing no help in the fiduciary process such as developing an investment policy statement, reviewing investment options, and educating participants in a participant-directed 401(k) plan is less reasonable than paying another advisor 50 basis points to serve as an ERISA §3(38) fiduciary. Why? The advisor charging 15 basis points is increasing the plan sponsor's liability as a fiduciary because they are doing nothing while the ERISA §3(38) fiduciary is assuming almost all of that liability. Reasonableness is not about cost, it's about the value of the services provided. A TPA that can help develop a plan design that maximizes contribution for highly compensated employees through a safe harbor/new comparability or a cash balance design is a better value than a TPA who only knows a 401(k) plan with comp to comp allocation.

Plan sponsors need to focus on the competency of plan providers, the services they offer, and the value they provide. Concentrating just on how much a provider charges may cost more in the long run if that provider provides incompetent services. I have seen too many plan sponsors forced into the Internal Revenue Service correction programs to fix the errors of plan providers that were picked solely on cost.
Check out That 401(k) Podcast.
The podcast you should listen to if you have the time.

Please check out That 401(k) Podcast, where I co-host with Dan Venturi of Bright Worxx. We tackle important 401(k) subjects for both plan sponsors and plan providers. In addition, we talk about all the events I'm hosting. as well as important cultural allusions.

Find it here and on Apple Podcasts here.

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The Rosenbaum Law Firm Review,  July 2020
, Vol. 11 No.  7

The Rosenbaum Law Firm P.C.
ary@therosenbaumlawfirm.com
734 Franklin Avenue, Suite 302

Garden City, New York 11530

Phone 516-594-1557 

Fax 516-368-3780    


 

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