Plan sponsors may breathe a slight sigh of relief with news that they'll have a year to massage the details on their fee disclosures, according to the Department of Labor's own Phyllis Borzi.
Speaking to this year's SPARK National Conference in Washington D.C. on Monday, EBSA's assistant secretary offered a bit of insight on the motivations and directions for this summer's impending free disclosure regs, but readily admitted that the pace of action has necessitated a slightly phased-in approach.
Borzi said that yet another set of Frequently Asked Questions - a rough guide to interpreting the rules in both the less-than-two-weeks-away 408(b)(2) and August's participant disclosures - will likely appear in the next couple of months, but that the ongoing delays mean the DOL will be a bit more understanding as sponsors spend the next year doing their very best to get the details in order. Especially, as she said, the final details do continue to emerge.
"The enforcement safe harbor means that if what you have done can be demonstrated to be in good faith, we will allow you to 'catch up' on the next round - and we're offering a year to 'correct' those disclosures to get ito compliance," Borzi said. "I'm anticipating the next set of FAQs in a month or so, but they won't be done by July 1. And the whole notion of the FAQs themselves may be rethought, as well."
Borzi herself said that she's been consistently frustrated by the length of time it's taken for the DOL's litany of proposals to clear the bureaucratic hurdles before adoption and said that she still feels the fee disclosure regulations were crafted with the best of intentions. How the public - not to mention plan sponsors - are going to react once they get that information is another matter, she conceded.
"We're not naive enough to think that it will be really smooth," she said. "There are certainly a number of concerns about roll-out and it's been shocking to find out that even some plan sponsors themselves didn't know that they were paying fees. Hopefully we can disabuse them of that notion.
"But there will still be some sticker shock and confusion when they see the fees, and we know that some of the plan sponsors will not be particulary pleased by what they see. That's why we think it's really important that fiduciaries have all the tools to make decisions themselves. Still, some people are going to be confused, shocked and angry."
At the participant level, Borzi said she expects even more tangible reaction, as the multiplier effect of fees can have a tremendous impact.
"For every 1 percent change in fees, over time, that can reduce 28 percent of the value of their benefit. It's just clear that people don't understand what they're paying
Borzi also broached the controversial response to Question 30 in the most recent round of FAQs, which some have suggested exonerates sponsors from fiduciary duty by allowing "brokerage windows" that give plan participants unlimted choices of designated investment alternatives. She said that is not the case, as far as the DOL sees things.
"A plan fiduciary needs to prudently select and monitor service providers under this arrangement - if you're giving people choices, you can't just set it and forget it and walk away," she said. "For those who seemed to think this was all new, I have to ask, 'what did you think your fiduciary duty was in this case?'"
Borzi said the department will also continue to work toward providing better integration of lifetime income strategies in the retirement realm, especially as more workers will be left to their own devices to invest the lump-sum assets of their 401(k) plans or, in the case of a growing number of employers, the lump-sum disbursements of shuttered pension plans.
And on the issue of a fiduciary standard, Borzi reiterated that the Department of Labor continues to press for specific fiduciary rules that will be more pertinent to retirement advisors than a broader standard adopted by the SEC.
"I absolutely will not promise a single fiduciary standard - we need much more thorough and robust advice, and we really have absolutely different objectives than the SEC."
Attorney Steve Saxon of Groom Law Group, the nation's largest employee benefits-focused law firm, had issues with some of Borzi's moves, as he spoke on the most recent retirement-related issues in Washington.
"The DOL's inability to pass the fiduciary definition has become a political embarassment," he noted. "We do think it's going to be re-proposed and I know that they're working on it - Phyllis is not going to back down on this one. That said, I don't think it will come until after the election."
Saxon said that his contacts with even prominent senators indicate that the level of bipartisan sparring we've seen in the past few years has served to damage the mood in Washington. He also indicated that the much-anticipated resolution to the Affordable Care Act - expected in the next 10 days - could wreak havoc on more than just the health sector as mandated participation in retirement programs could also be on the chopping block.