Defined benefit plan

Industry Welcomes Final Regulations for Default Electronic Delivery of Retirement Plan Disclosures

Scheduled for publication in the May 27th Federal Register are final regulations on default electronic delivery of retirement plan disclosures. These final regulations, issued by the Department of Labor’s Employee Benefits Security Administration (EBSA), provide an additional safe harbor that may enhance the ability of plan administrators and their service providers to deliver DOL-required disclosures to participants and beneficiaries of ERISA plans by electronic means.

An accompanying news release and EBSA fact sheet cite the presidential Executive Order of August, 2018, which directed the agency—in part—“to focus on reducing the costs and burdens that retirement plan disclosures impose on employers and others.” Proposed regulations were issued in October 2019, and public comments solicited at that time contributed to shaping these final regulations.

This guidance officially becomes effective 60 days following publication in the Federal Register. But the EBSA Fact Sheet notes that retirement plans may rely on these regulations immediately; no enforcement action will be taken against a plan for such premature reliance due to the impact of the coronavirus (COVID-19) pandemic. (The regulations’ preamble notes that the agency has chosen not to extend the guidance to welfare benefit plans at this time.)

Following are selected observations from an initial review of the final regulations and EBSA fact sheet.

The new safe harbor

The electronic delivery safe harbor can be satisfied by either of two means.

  • Website posting: A plan administrator is allowed to post covered documents (documents required to be furnished by ERISA Title 1 plans) on a website if appropriate notification of Internet availability is furnished to the electronic addresses of covered individuals.
  • Email delivery: A plan administrator may send covered documents directly to the electronic addresses of covered individuals, with the covered documents either in the body of the email or as an attachment to the email.

First step to e-delivery is on paper

As in the proposed regulations, a plan administrator intending to deliver some, or all, covered documents electronically must first notify participants—in a paper communication—of this intention.

Paper option remains

Not unexpected, recipients can opt out of receiving covered documents electronically and receive them in paper form, without charge. However, plan administrators need not (but may) offer recipients a “pick and choose” option to receive some documents in paper form and some electronically; the plan can require that an opt-out be “global;” (all or nothing). Conversely, a plan that uses electronic means to deliver some covered documents need not use electronic means for all.

Combining notices of Internet document postings

Certain notices of Internet postings can be combined in a single annual notice of Internet availability (NOIA), including the following.

  • Summary Plan Description (SPD)
  • Documents that must be provided annually; (e.g., Summary Annual Report (SAR))
  • Other documents authorized by the Secretary of Labor
  • Notices required by the Internal Revenue Code if authorized by the Secretary of the Treasury; (e.g., automatic contribution arrangement (ACA) notice)

Flexibility in definition of “website

The final regulations acknowledge the importance of including new and developing technologies in applying the guidance, as long as the safe harbor requirements can be met. Mobile applications qualify.

Informing participants of document posting

If covered documents are to be posted to a website, recipients must be able to receive a plan’s NOIA. An electronic address to which a NOIA is sent may be an email address. If it is a phone number, it must be capable of receiving written/text messages (plan administrators must confirm this). Delivery of a NOIA by voice message does not meet this requirement.

Availability of web-posted documents

A covered document posted to a plan’s website must remain there at least one year, or—if longer—until superseded (replaced by) an updated version of the same document.

Document description accompanying a NOIA
A NOIA alerting a participant to an Internet document posting need not include a separate description of the document, if the document’s name—included in the NOIA—would reasonably convey the nature of the document. If not (e.g., a blackout notice), a description of the document being posted to the Internet is required.

Readability

Detailed guidelines for readability in the proposed regulations (using the Flesch reading ease score) were removed, and are not included in the final regulations. The final regulations more simply require that communications under this guidance be “written in a manner calculated to be understood by the average plan participant.”

Accessing and Understanding

The plan administrator has no affirmative obligation under the final regulations to monitor whether covered individuals have visited a website to view posted information. Unaddressed—but noted, in reference to a recent ERISA court case—is the issue of whether a recipient has read, understood, and has “actual knowledge” of the information posted.

Special rule for severance from employment from plan sponsor

Procedures should be in place to ensure that a plan administrator will continue to have a valid electronic address to which notices can be provided after severance from employment.

Transition relief, prior guidance superseded

For an 18-month period following the effective date of these final regulations, retirement plans can also rely on prior guidance for the delivery of certain covered disclosures. This guidance includes Field Assistance Bulletin (FAB) 2006-003, FAB 2008-003 (Q&A 7), and Technical Release 2011-03R. Thereafter, the relevant portions of the prior guidance are superseded by the final regulations.

Reasonable procedures for compliance

These final regulations add “technical maintenance” of websites as a circumstance that warrants consideration of facts and circumstances, when—for a reasonable amount of time—disclosure documents may be unavailable to a recipient.

We’re currently preparing a Washington Pulse article to provide further analysis of the final e-delivery regulations, and it will be posted to the the ascensus.com newsroom once available.

 


House Passes More Pandemic Aid; Quick Senate Action Not Expected

The House of Representatives late Friday passed H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, providing additional aid to many who are adversely affected by the novel coronavirus (COVID-19) pandemic. The bill also contained non-COVID-19-related provisions considered likely to prove controversial in the Senate.

Unlike the Families First Coronavirus Response Act, and the Coronavirus Aid, Relief, and Economic Security (CARES) Act—both of which moved fairly rapidly through Congress—the HEROES Act has been called “dead on arrival” by Senate Majority Leader Mitch McConnell (R-KY), who—with Republican colleagues—envisions a much less comprehensive bill. Sen. McConnell has also expressed a desire to move slowly and gauge the effectiveness of earlier relief. Most expect no additional COVID-19-related legislation to be enacted before sometime in June.

As announced last week, the House bill contains provisions for the following.

  • Continued financial assistance to unemployed workers
  • Financial assistance to state, local, tribal, and territorial government entities
  • Waiver of 2019 required minimum distributions (RMDs)
  • Waiver of the 60-day and one-rollover-per-12-month rules for otherwise-required RMDs waived for 2019 and 2020
  • Amendments to the Emergency Family and Medical Leave Expansion Act
  • Relief for participants in health flexible spending arrangements (FSAs)
  • Codifying the ability of employers to deduct certain expenses covered by loans that are forgiven under the SBA Paycheck Protection Program
  • Providing money purchase pension plans the early distribution and loan relief that the CARES Act provided to other qualified retirement plans
  • A new retirement “composite plan,” with features that include those of 401(k) and defined benefit (DB) pension plan
  • Relief for multiemployer (collectively-bargained) DB pension plans
  • Amortization relief for single employer DB pension plans
  • Further funding relief (beyond that provided by the SECURE Act) to certain community newspaper DB plans
  • Aid to certain federal agencies affected by the pandemic, including the Departments of Homeland Security, Interior, Health and Human Services, Labor, Transportation, Housing and Urban Development, and Education
  • Enhanced Medicare and Medicaid benefits
  • Medical supply chain enhancement
  • Testing and reporting enhancement
  • National strategic stockpile for pandemic response
  • Bankruptcy protections for homeowners
  • Certain student loan relief and protections
  • Additional aid to veterans during the COVID-19 pandemic
  • Federal election early and by-mail voting procedure

House Democrats Introduce Next Coronavirus Relief Bill

In an atmosphere more partisan than earlier coronavirus relief efforts, the Democratic caucus of the House of Representatives has released a bill to fund another round of assistance as the nation attempts to cope with the health and economic effects of the coronavirus (COVID-19) pandemic. This legislation, as yet unnumbered, is being referred to as the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act.

Three prior bills—which provided direct cash benefits to Americans, created a small business lending program to help employers retain employees and provided enhanced access to tax-favored retirement savings—were dealt with quickly by Congress and signed into law by President Trump. This round of relief has been predicted to provoke greater resistance among lawmakers who are averse to expanding the federal deficit. There is also expected to be less common ground in the House and Senate—and Democrat and Republican—priorities for additional relief.

The House-released bill contains provisions for the following.

  • Continued financial assistance to unemployed workers
  • Financial assistance to state, local, tribal, and territorial government entities
  • Waiver of 2019 required minimum distributions (RMDs)
  • Waiver of the 60-day and one-rollover-per-12-month rules for otherwise-required RMDs waived for 2019 and 2020
  • Amendments to the Emergency Family and Medical Leave Expansion Act
  • Relief for participants in health flexible spending arrangements (FSAs)
  • Codifying the ability of employers to deduct certain expenses covered by loans that are forgiven under the SBA Paycheck Protection Program
  • Providing money purchase pension plans the early distribution and loan relief that the CARES Act provided to other qualified retirement plans
  • A new retirement “composite plan,” with features that include those of 401(k) and defined benefit (DB) pension plan
  • Relief for multi-employer (collectively-bargained) DB pension plans
  • Amortization relief for single employer DB pension plans
  • Further funding relief (beyond that provided by the SECURE Act) to certain community newspaper DB plans
  • Aid to certain federal agencies affected by the pandemic, including the Departments of Homeland Security, Interior, Health and Human Services, Labor, Transportation, Housing and Urban Development, and Education
  • Enhanced Medicare and Medicaid benefits
  • Medical supply chain enhancement
  • Testing and reporting enhancement
  • National strategic stockpile for pandemic response
  • Bankruptcy protections for homeowners
  • Certain student loan relief and protections
  • Additional aid to veterans during the COVID-19 pandemic
  • Federal election early and by-mail voting procedure

AICPA Delays Required Implementation of New Reporting Standards for Plans Subject to ERISA

The American Institute of Certified Public Accountants (AICPA) has issued Statement of Auditing Standards (SAS) Number 141, which provides for a delay in effective dates for several SAS’s, including SAS 136, Forming an Opinion and Reporting on Financial Statements of Employee Benefit Plans Subject to ERISA.

As previously reported in an Ascensus Retirement Spotlight, SAS 136 clarifies and formalizes best practices that auditors must adhere to when conducting an audit of ERISA employee benefit plans as part of the annual Form 5500 filing, and requires a new two-pronged opinion on the plan’s financial statements. SAS 136 also provides that the new rules are to apply for plan years ending on or after December 15, 2020, and early implementation is not allowed.

SAS 141, however, amends the effective date to December 15, 2021. Additionally, it amends SAS 136 to no longer preclude early implementation.


President Trump Signs Bill to Replenish Paycheck Protection Program

Following passage by an overwhelming margin in the U.S. House of Representatives Thursday, President Trump today signed into law the Paycheck Protection and Healthcare Enhancement Act, infusing $320 billion in additional funding into the Small Business Administration’s Paycheck Protection Program (PPP).

PPP is a lending program created to help small employers retain employees on their payrolls during the coronavirus (COVID-19) pandemic and resulting economic emergency. In addition to providing additional funding for the small business loan program, the legislation also provides new funding for hospitals dealing with the immediate effects of the pandemic, and—specifically—for enhanced COVID-19 testing.

PPP loans, which, under certain conditions, may be forgiven, can be used not only for employee wages and salaries, but also to fund employee retirement and health benefits.

 


Bill to Replenish Paycheck Protection Program Passed by House, President Expected to Sign

Following passage by the U.S. Senate on Tuesday, the House of Representatives today overwhelmingly passed the Paycheck Protection and Healthcare Enhancement Act by a vote of 388 to 5, infusing a reported $320 billion in additional funding into the Small Business Administration’s Paycheck Protection Program (PPP). President Trump has indicated that he will sign the legislation into law.

PPP is a lending program created to help small employers retain employees on their payrolls during the coronavirus (COVID-19) pandemic and resulting economic emergency. In addition to providing additional funding for the small business loan program, the legislation also provides new funding for hospitals dealing with the immediate effects of the pandemic, and—specifically—for enhanced COVID-19 testing.

PPP loans, which, under certain conditions, may be forgiven, can be used not only for employee wages and salaries, but also to fund employee retirement and health benefits.

 


Bill Passed by Senate Would Replenish Paycheck Protection Program

The U.S. Senate on Tuesday overwhelmingly passed the Paycheck Protection and Healthcare Enhancement Act, legislation that would provide $320 billion in additional funding to the Small Business Administration’s Paycheck Protection Program (PPP). This lending program is intended to help small employers retain employees on their payrolls during the coronavirus (COVID-19) pandemic and resulting economic emergency. The legislation would also provide funding for hospitals dealing with the immediate effects of the pandemic, and, specifically, for enhanced COVID-19 testing.

PPP loans, which, under certain conditions, may be forgiven, can be used not only for employee wages and salaries, but also to fund employee retirement and health benefits during an eight-week period.

The legislation must now be passed by the U.S. House of Representatives. An attempt to do so is expected on Thursday, April 23. President Trump has indicated he would sign the Senate’s version of the bill.


Electronic Delivery Final Regulations Closer to Being Released

Much-awaited Department of Labor (DOL) final regulations on electronic delivery of retirement plan disclosures have made their way to the federal Office of Management and Budget (OMB), generally the final stop on their way to official issue. (Only if the OMB finds objections to guidance is it returned to the issuing agency for revision.)

The retirement industry has been awaiting these final regulations since their proposed version was issued in October 2019. It is hoped that the guidance will enhance the ability of retirement plans and their service providers to deliver required disclosures to participants and beneficiaries by electronic means. While the OMB can take as much as 90 days to review such guidance (there is no minimum review period), a lengthy review period is not anticipated.


FAQs Affirm Employee Benefits Eligible as “Payroll” for Payroll Protection Program Loans

Scheduled to be published in the Federal Register is an interim final rule issued by the federal Small Business Administration (SBA), guidance that includes frequently-asked-questions (FAQs) on Payroll Protection Program (PPP) loans available to small businesses to help them maintain their workforce during the coronavirus (COVID-19) pandemic. Businesses with no more than 500 employees—including not-for-profits and sole proprietorships—can apply for these low interest and potentially forgivable SBA loans if certain conditions are met.

The FAQs answer many potential employer questions on eligibility, calculating amount of loan available, and—especially important—what expenses qualify as “payroll” costs for purposes of the program. Similar to Treasury Department guidance previously issued and announced here, these SBA FAQs affirm that eligible payroll costs include a number of employee benefits; among them are the following.

  • Retirement benefits
  • Group healthcare coverage, including the payment of premiums
  • Payment of state and local taxes on employee compensation
  • Family, medical, or sick leave benefits

PBGC Provides Coronavirus-Related Filing Relief

The Pension Benefit Guaranty Corporation (PBGC), the agency that insures benefits in certain single-employer defined benefit pension plans, has posted an announcement describing deadline relief being provided as a result of the coronavirus (COVID-19) pandemic.

The PBGC’s disaster relief policy provides that when an event warrants an extension of time to file Form 5500, Annual Return/Report of Employee Benefit Plan (or others in the 5500 series), then “the due date for most PBGC filings is extended to the same date.” Triggering the latest extension was IRS Notice 2020-23, which, by reference to Revenue Procedure 2018-58, extended to July 15, 2020, the deadlines for many actions otherwise due to be completed between April 1 and July 15. One of these actions is the filing of Form 5500 for those plans whose deadline falls within these date parameters.

The relief noted by PBGC includes the following.

  • Payment of PBGC premiums due on or after April 1, 2020, and before July 15, 2020
  • ERISA 4010 filings for certain underfunded pension plans (those with filing deadlines on or after April 1, 2020, and before July 15, 2020

Some deadlines are not extended, including those that are “particularly important or time-sensitive filings … that may indicate a high risk of harm to pension plan participants and the insurance program.” These pertain to such issues as filings to report a loan default and filings to report a liquidation.

To qualify for the relief, it is necessary for the filer to notify the PBGC of its eligibility. The filer must do so on or before the last day of the relief period. The PBGC’s “Disaster Relief Announcement” provides more information on the notification process.