Defined contribution plan

DOL Proposes a Safe Harbor for Electronic Delivery of Employee Benefit Plan Disclosures

The Department of Labor (DOL) has issued proposed regulations which—if adopted—would provide a safe harbor for electronic delivery as the primary or default means to provide ERISA benefit plan disclosures to participants and beneficiaries. The DOL has also provided a fact sheet and posted a news release about the proposed regulations.

Under conditions prescribed in this guidance, plan administrators may inform participants and beneficiaries that these disclosures will be made available on a website. Participants and beneficiaries may, however, request the information in paper form, and may opt out of electronic delivery altogether.

This guidance also contains a DOL request-for-information (RFI) seeking input on additional changes to the “design, delivery and content” of ERISA benefit plan disclosures, changes that could “further improve the effectiveness of ERISA disclosures.”

Comments on the proposed regulations and responses to the RFI are due 30 days from publication in the Federal Register, which is scheduled for tomorrow. The guidance is proposed to take effect 60 days after publication as final regulations in the Federal Register.

President’s Executive Orders Could Affect Agency Guidance and Enforcement

President Trump on October 9, signed two executive orders that could have an impact on retirement, health and welfare, and comparable guidance issued by agencies that are part of the executive branch of our federal government. Among these agencies are the Treasury Department and IRS, the Department of Labor’s Employee Benefit Security Administration (EBSA), the Department of Health and Human Services (HHS), and the Department of Education.

The ultimate effects of these executive orders have yet to be determined, but they seem clearly intended to limit the issuance, the effect, and the enforcement of certain types of guidance below the level of formal regulations. These executive orders are consistent with the Trump administration’s stated intent to limit regulatory burden, and, in particular, to limit certain kinds of nonregulation guidance that have the effect or force of law.


Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents

This executive order is intended to establish a policy limiting the issuance of agency guidance other than formal regulations that have been subject to public notice, comment, and approval procedures. Furthermore, existing guidance of this kind—called “sub-regulatory” guidance—is to undergo review by the Office of Management and Budget (OMB) if the affected agencies wish to have that guidance remain in effect.


Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication

This executive order would appear to limit compliance enforcement to violations of statutes or approved regulations. Furthermore, if an agency wishes to cite its own understanding of what is necessary to comply with a statute or regulation, then any guidance expressing that agency’s understanding must first have been made publicly available, either by publishing in the Federal Register, or made available in a searchable database of that agency.


What Next?

It is difficult to predict the extent to which these executive orders may affect reliance on past guidance, the issuance of new guidance, and the enforcement of past or future guidance.

Student Loan and Retirement Plan Guidance on IRS Priority List

The IRS has released its fiscal year 2019-2020 Priority Guidance Plan (PGP). Employee benefit-related items on the list include “Guidance on student loan payments and qualified retirement plans and 403(b) plans.”

Both employers and federal lawmakers have made student loans a high-profile issue, due in part to debt burdens that are said to be limiting employees’ ability to participate fully in their employers’ retirement plans, and in the U.S. economy.

Employers have individually requested IRS approval of benefit arrangements that link student loan repayment and retirement plans. There have been calls for the IRS to issue guidance that other employers could avail themselves of without seeking IRS guidance or approval individually.

Similarly, many bills that have a student loan dimension have been introduced. Some address such elements as disclosure, financing options, and debt forgiveness, but several have linked student loan payments with employer-sponsored retirement plans. For example, the Retirement Parity for Student Loans Act, introduced in December 2018 by Sens. Rob Portman (R-OH) and Ben Cardin (D-MD), would allow employer retirement plan contributions on behalf of employees that are based on their higher education student loan payments.

Other retirement benefit-related items on the 2019-2020 PGP are either new or carryovers from prior years’ lists, including the following.

  • Revisions to the IRS Employee Plans Compliance Resolution System program for correcting retirement arrangement defects
  • Revised life expectancy tables used to calculate required minimum distributions, taking into account longer life expectancies
  • Broad updated guidance on Traditional and Roth IRAs
  • Guidance on retirement plans of affiliated service groups
  • Guidance on church retirement plans

2020 Taxable Wage Base Announced

The U.S. Social Security Administration has announced several 2020 benefit amounts that increase according to a cost-of-living-adjustment (COLA) formula. The adjustment that applies to tax-advantaged retirement savings arrangements is the Social Security taxable wage base (TWB), which will rise from $132,900 to $137,700 for 2020.

The TWB is the income level above which amounts are not withheld from earnings for Social Security benefit purposes. The TWB is used in certain retirement plan allocation formulas, notably for the allocation of some profit sharing and simplified employee pension (SEP) plan contributions. Such formulas are often referred to as “integrated” or “permitted disparity” formulas. Their use allows an additional benefit based on employee compensation above an integration level; one of the permitted integration levels is the Social Security TWB.

Potentially significant for other savings arrangements is the fact that IRS COLA-adjusted amounts for IRAs and employer-sponsored retirement plans for the coming year are often released very shortly after the Social Security Administration announces the TWB.

DOL Issues Final Regulations on Overtime Pay and Exemptions for Certain Classes of Employees

The Department of Labor’s (DOL) Wage and Hour Division has issued final regulations on overtime pay, and, specifically, exemptions from overtime pay for certain “executive, administrative, professional, outside sales and computer employees.”

The Fair Labor Standards Act (FLSA) requires certain covered employees to be paid a minimum wage and—for employees who work more than 40 hours in a week—to receive “overtime premium pay that is at least 1.5 times the regular rate of pay.” Certain classes of employees—generally salaried employees—are exempt from this requirement, but there are salary levels below which an employee would nevertheless be considered eligible for overtime pay.

The Wage and Hour Division issued a request for information (RFI) in July 2017, seeking public input that might be helpful in rewriting previously issued final regulations regarding overtime pay and exemptions. Information gathered following this RFI led to the agency’s issuance of proposed regulations in March 2019, and now—six months later—their issuance in final form.

These final regulations address salary levels in the context of overtime pay eligibility, the inclusion of bonuses, incentive payments and commissions in salary level requirements, treatment of highly compensated employees, and future updates to earnings thresholds.

While employers or their plan administrators generally make compensation determinations for retirement plan purposes, some feel this DOL guidance could affect not only compensation for benefits purposes, but potentially plan design.

The effective date of these final regulations is January 1, 2020.

IRS Releases Guidance for Correcting Form Defects in 403(b) Plans

The IRS released Revenue Procedure (Rev. Proc.) 2019-39, which sets forth a system of recurring remedial amendment periods for correcting form defects in 403(b) plans. Rev. Proc. 2019-39 provides guidance for correcting form defects in both individually designed 403(b) and pre-approved 403(b) plans first occurring after March 31, 2020, which is the ending date for the initial remedial amendment period outlined in Rev. Procs. 2013-22 and 2013-18.

Rev. Proc. 2019-39 also provides a limited extension of the initial remedial amendment period for certain form defects, and establishes a system of 403(b) pre-approved plan cycles under which proposed pre-approved 403(b) plans may be submitted to the IRS for approval.

Additionally, this revenue procedure provides deadlines for both individually designed 403(b) plans and pre-approved 403(b) plans for the adoption of plan amendments.

Eugene Scalia Confirmed as Next DOL Secretary

The U.S. Senate voted along party lines to confirm Eugene Scalia as the next Secretary of Labor, a position made vacant with the resignation in July of then-Secretary Alexander Acosta. Scalia replaces Acting Secretary Patrick Pizzella, who took the reins when Secretary Acosta resigned. Scalia, son of the late Supreme Court Justice Anton Scalia, was a private law firm litigator in the lawsuit that eventually vacated the 2016 Department of Labor final investment fiduciary regulations. All Senate Republicans voted to approve Scalia, while all Democrats opposed.

Washington Pulse: Hardship Distributions Made Easier

On September 19, 2019, the IRS issued final regulations that make retirement plan assets more accessible to those experiencing financial hardship. Released approximately 10 months after the proposed regulations, the final hardship distribution regulations address changes made by the Bipartisan Budget Act of 2018 (BBA) and satisfy a BBA provision directing the IRS to update its hardship regulations in general.

Among other things, the final hardship distribution regulations allow employers to broaden the employee contribution sources (including earnings) available for hardship distributions, and to grant a hardship distribution without first requiring the participant to take a plan loan. In addition, the regulations eliminate the six-month suspension of salary deferral and employee after-tax contributions (employee contributions) following receipt of a hardship distribution.


Hardship Distribution Overview

Retirement plan participants generally are prohibited from taking plan distributions unless certain events occur—such as separation from service or attainment of age 59½. But employers are permitted to design plans to allow participants experiencing financial difficulties to take hardship distributions.

Before receiving a hardship distribution, a participant must meet two conditions. First, the participant must have an “immediate and heavy financial need.” Second, the distribution must be necessary to satisfy that financial need.

The final regulations do not change how employers determine whether participants have an immediate and heavy financial need. Employers may still generally choose to use safe harbor rules (some of which changed under the final regulations) or may rely on “facts and circumstances.”

The final regulations do change how employers determine if a distribution is necessary to satisfy the financial need. Instead of relying on facts and circumstances, employers must now follow a general standard when determining if a participant has met this requirement.

The IRS adopted the final regulations with minimal changes from the proposed regulations. The highlights of the final regulations are discussed next.


The “Immediate and Heavy Financial Need” Safe Harbor Provisions

The final regulations make the following changes to the “immediate and heavy financial need” safe harbor provisions.

Federal disaster declarations

The final regulations add a safe harbor for “expenses and losses—including loss of income—incurred by the employee” in FEMA-declared disasters. Employers may apply this safe harbor to distributions taken on or after January 1, 2018. According to the IRS, this safe harbor expense differs from its previous disaster relief in three ways.

  • The safe harbor applies only to the participant’s losses and expenses (not to the losses and expenses of the participant’s relatives or dependents.)
  • Participants do not have a specific deadline by which to take a hardship distribution. And although the IRS does not have the authority to relax certain procedural requirements, employers may be more flexible when processing hardship distributions following a disaster.
  • An employer that chooses to wait until a disaster occurs to allow disaster-related distributions must amend its plan by the end of the plan year in which the amendment first applies.

This safe harbor is meant to end any uncertainty about accessing plan assets following a major disaster. As a result, the IRS and Treasury Department do not believe that future disaster-related announcements will be needed.

Repairing damage to principal residence

The Tax Cuts and Jobs Act of 2017 (TCJA) eliminated an income tax deduction for certain personal casualty losses for tax years 2018 through 2025 unless the losses were part of a federally-declared disaster. As a result, the availability of the safe harbor for repairing damage to a principal residence was severely limited. The final regulations remove the limitation imposed by TCJA for hardship distribution purposes, restoring the broad usefulness of this safe harbor.

Primary beneficiary safe harbor

This change aligns the regulations with an earlier law change that—plan permitting—includes the hardship of an employee’s primary beneficiary for medical, educational, or funeral expenses.


Determining Whether a Distribution is Necessary to Satisfy a Financial Need

The final regulations create a general standard for determining whether a hardship distribution is necessary to satisfy a financial need. Under this new standard, a hardship distribution must not exceed a participant’s need (including amounts to pay penalties and taxes), and the participant must not have any other way of meeting that need. To meet the second requirement,

  • the participant must take all other available distributions from the plan and from all deferred compensation plans of the employer,
  • the participant must represent that she has insufficient funds “reasonably available” to satisfy the financial need, and
  • the plan administrator cannot have actual knowledge that the participant’s representation is false.

The final regulations clarify that a participant can represent that she has insufficient funds even if she does have cash or other assets on hand—as long as she’s planning to use those assets on other future expenses (e.g., rent). The final regulations also clarify that in addition to a written representation, a participant can make a verbal representation through a recorded phone call.


Employers May Add Other Conditions, but Can’t Suspend Deferrals

In addition to the general standard described above, an employer may design its plan to require participants to meet additional conditions—such as taking a plan loan—before being eligible for a hardship distribution or requiring a nondiscriminatory minimum hardship distribution amount. Beginning January 1, 2020, however, an employer cannot require participants in a qualified plan, 403(b) plan, or governmental 457(b) plan to suspend employee contributions after receiving a hardship distribution.

While these three types of plans cannot suspend deferrals, the final regulations clarify that nonqualified deferred compensation plans may continue to include a suspension feature.


More Contribution Sources Available For Distributions

In addition to earnings on elective deferrals, other contribution sources in a participant’s 401(k) plan account may now be distributed for hardship reasons—including qualified nonelective contributions (QNECs), qualified matching contributions (QMACs), employer ADP safe harbor and QACA safe harbor contributions, and earnings on all of these amounts.

The new rules relating to hardship distributions also apply to 403(b) plans. However, earnings on 403(b) elective deferrals continue to be ineligible for hardship distribution and QNECs, QMACs, and other employer contributions continue to be unavailable in 403(b)(7) custodial accounts.


Other Issues

Using all safe harbor expenses not required

When determining if a participant has an immediate and heavy financial need, the final regulations clarify that employers may make available some but not all of the safe harbor expenses. The regulations also make clear that employers do not need to include all categories of individuals (e.g., primary beneficiaries) when determining who has a safe harbor expense.

Notice Requirements

The final regulations indicate that employers with ADP and/or ACP safe harbor plans must provide safe harbor notices that contain the hardship withdrawal provisions. If an employer’s current notice does not contain the new provisions, then the employer must provide an updated notice to eligible participants and provide participants with an opportunity to change their election.


Applicability Dates

The new hardship distribution rules apply to distributions taken on or after January 1, 2020, but employers may choose to apply the rules to distributions taken in plan years beginning after December 31, 2018.

The regulations allow employers to stop suspensions of contributions for hardship distributions taken in plan years after December 31, 2018. Employers may apply this rule as of the first day of the first plan year beginning after December 31, 2018, even if the hardship distribution was taken in the prior plan year (e.g., in October 2018.)


Amendment Deadlines

Although the amendment deadlines vary based on the type of plan document used, all amendments must apply to distributions taken no later than January 1, 2020.

At this point, the amendment deadline for pre-approved plan documents is unclear. Ascensus will provide updates as additional information becomes available.

The amendment deadline for individually designed plans (IDDs) depends on when the IRS includes the final regulations in the Required Amendments list. If the IRS includes the final regulations in the 2019 Required Amendments List, then employers must amend their IDDs by December 31, 2021.

For now, the 403(b) plan remedial amendment deadline is March 31, 2020. But the IRS and Treasury Department may issue separate guidance that provides for a later amendment deadline.


Next Steps…

Now that the final regulations have been released, service and document providers have begun analyzing the regulations with an eye toward updating their products and services. In the meantime, employers should become familiar with the revised hardship requirements and expect future amendments.

Ascensus will continue to monitor any new guidance as it is released. Visit for the latest information.


Click here for a printable version of this edition of the Washington Pulse.


IRS Issues Long-Awaited Final Regulations for Retirement Plan Hardship Distributions

Scheduled to be published in Monday’s Federal Register are IRS final regulations for hardship distributions from employer-sponsored retirement plans, including 401(k) and 403(b) plans. These regulations are chiefly a response to statutory changes affecting hardship distributions that were contained in the Bipartisan Budget Act of 2018.

The hardship-related changes in that legislation included the following.

  • Elimination of the (formerly) required 6-month suspension of employee elective deferrals following receipt of a hardship distribution
  • Allowing inclusion of employer-provided qualified nonelective contributions (QNECs) and qualified matching contributions (QMACs) and their earnings—as well as earnings on employee elective deferrals—in hardship distributions
  • Elimination of the requirement that available retirement plan loans be taken before the granting of a hardship distribution

Additional regulatory guidance on these changes—including required plan amendments—has been awaited since the legislation’s enactment and the IRS’ issuance of proposed regulations in November 2018.

Ascensus will continue to analyze these regulations. Stay tuned for additional information.

NAPA Names Two Ascensus Regional Vice Presidents to 2019 Top 100 Defined Contribution Wholesalers List

Jeff Simes and Matt Spicer, AIF®, PPC™ Recognized as Leading DC Wholesalers, as Voted on by Thousands of Retirement Plan Advisors

Dresher, PAAscensus—whose technology and expertise help millions of people save for retirement, education, and healthcare—announced that two regional vice presidents, Jeff Simes and Matt Spicer, AIF®, PPC™, have been named to the sixth annual list of NAPA Top 100 Defined Contribution (DC) Wholesalers by the National Association of Plan Advisors (NAPA). This represents a second win for Spicer, who was previously named to the 2017 edition of the list. 

The finalists for this year’s list, which recognizes the top recordkeeping and Defined Contribution Investment Only (DCIO) external wholesalers, were selected by thousands of retirement plan advisors from a list of more than 600 wholesalers nominated by NAPA Firm Partner recordkeepers and DCIOs.

According to NAPA, the award winners—referred to as the “Wingmen” for consistently having the backs of their advisor clients—represent the top 7% of an estimated 1,400 recordkeeping and DCIO external wholesalers throughout the country.

“Being named among NAPA’s Top 100 DC wholesalers is a huge accomplishment and a well-deserved recognition of Jeff and Matt’s efforts to go above and beyond for our partners and their retirement plan clients,” said Jason Crane, head of retirement distribution at Ascensus. “Congratulations to them both from the whole Ascensus team. Their work is an excellent example of the value and expertise we strive to deliver to all those saving for their future retirement, and representative of the talent we have across the broader organization.”

The complete 2019 Top 100 DC Wholesalers list is available on NAPA Net and will be published in the fall issue of NAPA Net the Magazine.


About Ascensus

Ascensus is the largest independent recordkeeping services provider, third-party administrator, and government savings facilitator in the United States. The firm delivers technology and expertise to help millions of people save for what matters most—retirement, education, and healthcare. For more information about Ascensus, visit View career opportunities at