Not to say that anyone told you so, but fee disclosure regulations have not exactly set the participant world on fire.
Nonetheless, with the next round of more detailed participant information scheduled for Nov. 14, Craig Hoffman, ASPPA general counsel and head of the organization's regulatory affairs division, said that the fee disclosure issue will continue to vex plan administrators and advisors for years to come - so it's important to pay attention to the rules.
Speaking Tuesday at the organization's annual meeting, Hoffman admitted he did an experiment of his own when his ASPPA 401(k) fee disclosure statements came in the mail.
"I thought I should experience it like everyone else did," he said. "So I put it in my trash can. Sadly, that's not unrealistic as to what went on. But yes, I think it's ridiculous and I know your pain. One health company I work with said it costs them $200,000 extra to send out each notice, and nobody reads them."
Hoffman said he spoke with a client who handed out 35 fee disclosure statements to employees at a meeting and picked 34 of the forms out of the garbage after the meeting. There's a glimmer of good news there, however.
"Not everyone's going to read it, but if that 35th person reads it and gets fired up and tells the other employees, then we've done our job," he said. "Will quarterly statements generate more complaints, or more interest? I can hardly wait to find out."
Hoffman said the jury's still out on the issue of brokerage windows and the necessity to disclose the fees associated. He said his speculation is that the Department of Labor overreacted to the possibility that some smaller companies would use brokerage windows as a way to avoid complying with 404(a)(5) regulations, though that doesn't seem to be the case.
Would those administrating so-called "doctor and lawyer" plans, with just 13 participants making 13 different choices from 13 different providers, need to provide disclosures on every possible permutation?
"It created a great deal of angst, so we met with the DOL on the issue and they demonstrated that they're not at all interested in backing off," he said. "They're very process-driven. And suddenly they were making the rules."
The subsequent release of FAQ 39 indicates that the department may have changed its mind on the issue.
"It's a little too early to say you won. I think we're clearly in more of a cooling-off period, and obviously, the DOL wants to come back and re-open the regulations."
In the meantime, Hoffman said he and the organization hopes to continue to meet with the DOL - a meeting scheduled Tuesday was cancelled due to the weather - to iron out some of the details and try to make it easier for administrators and advisors to follow both the 408(b)(2) and 404(a)(5) regulations. One attendee noted those regulations have created "investment information now responsible for the deforestation of America."
Frustratingly, after considerable delays - the first versions of the fee disclosure regulations were issued in Dec. 2007 and even the current version is referred to as "interim financial regulation" - many reporting issues still remain vague and potentially injurious to recordkeepers and reporters.
"There are still no FAQs on participant-level issues, and we've been waiting three months for those," he said. "Now they may come out after the effective date."
Do administrators have to give written notice for something as simple as actuall lowering fees?
Yes, Hoffman suggests. "The problem here, folks, is that you are trying to apply a rational thought process to this, and that doesn't work," he said.
Hoffman said that disclosure rules for welfare benefit plans are still a work in progress. And even figuring out the effective date for notifiying participants can be a struggle - do you start at the point at which employees actually put money into their accounts? Hoffman suggests to be overly cautious, to file annually and quarterly in even the most vague of cases, and to understand the importance of 30 to 90-day notice for any changes.