As required by final regulations on participant fee disclosure that became effective in 2012, a plan administrator of an individual account plan (such as a 401(k) plan or 403(b) plan) that allows participants to direct how their accounts are invested is required to provide participants and beneficiaries with certain information regarding the plan’s investment options, including a chart comparing the plan’s investment options (the “comparative chart”).1 The U.S. Department of Labor (“DOL”) recently issued Field Assistance Bulletin 2013-022 (the “FAB”) which gives plan administrators an opportunity to “re-set” the annual deadline for providing the comparative charts for their plans.
Under the regulations, a plan administrator was required to provide the first comparative chart by the later of (i) August 30, 2012 or (ii) 60 days after the first day of the plan year starting on or after November 1, 2011. The regulations require subsequent comparative charts to be provided to participants “at least annually thereafter,” which the regulations define as at least once in any 12-month period. Accordingly, the deadline for the first comparative chart for a plan with a calendar year plan year was August 30, 2012, and the plan’s deadline for subsequent comparative charts would be each anniversary of the date that the first comparative chart was provided. For example, if a plan administrator provided the first comparative chart on August 15, 2012, annual comparative charts would have to be provided by each August 15 thereafter.
Some plan administrators and service providers expressed concerns to the DOL regarding this timing. First, they noted that this timing would require a separate mailing because it does not correspond to any other participant disclosures and, as such, would increase administrative costs. Second, they contended that participants may be more likely to adequately consider the comparative chart if it is provided at other times, such as with benefits open enrollment materials or a quarterly participant benefit statement. In response to these concerns, the FAB gives a plan administrator an opportunity to “re-set” its annual deadline for providing the comparative chart by using one of the methods below if the plan administrator reasonably determines that doing so will benefit participants and beneficiaries:
- A plan administrator may provide the second comparative chart no later than 18 months after the date that the first comparative chart was provided. The new annual deadline for the comparative chart will be the anniversary of the date that the second comparative chart is provided. For example, if a plan administrator chooses to provide the second comparative chart with benefits open enrollment materials on November 1, 2013, then annual comparative charts will have to be provided by each November 1 thereafter.
- If a plan administrator has or intends to provide the second comparative chart by its original deadline, the plan administrator may “re-set” its deadline with the third comparative chart so long as the third comparative chart is provided no later than 18 months after the date that the second comparative chart was provided. For example, if a plan administrator provided the first comparative chart on August 15, 2012, and intends to provide the second comparative chart on August 15, 2013, the deadline for the third comparative chart would be February 15, 2015. The new annual deadline for the comparative chart will be the anniversary of the date that the third comparative chart is provided.
Finally, the DOL announced in the FAB that it is considering an amendment to the fee disclosure regulations to allow a 30-day or 45-day window during which the annual comparative chart would have to be provided, rather than fixing the annual deadline to one specific day. The DOL requested comments on that approach.
Please contact a member of the Employee Benefits team if we can help you through this opportunity to “re-set” the deadline for your plan’s comparative chart or with any other disclosure requirements.
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1 The DOL’s model comparative chart is available here.
2 Field Assistance Bulletin 2013-02