A New Year’s resolution for fiduciaries

Too many 401(k) sponsors are not aware of their ERISA obligation to evaluate plan fees and expenses.

By Eric Droblyen | December 30, 2014 at 08:13 AM

I have always liked New Year's resolutions. They are a great excuse for ending bad behaviors or starting good ones.  Here's one for all small business 401(k) sponsors: "I will evaluate my plan fees for reasonableness." 

Let me explain why …

ERISA requires 401(k) sponsors, and any other fiduciary, to ensure that the services provided to their plan are necessary and that contracts or arrangements for services, and the cost of those services, are reasonable. Failure to do so can result in personal liability for the responsible fiduciary.

Too many 401(k) sponsors are not aware of their ERISA obligation to evaluate plan fees and expenses. And even fewer know how to prove fees for plan services are reasonable.

Here are three simple steps that will help you evaluate 401(k) fees in 2015: 

1. Confirm receipt of a 408(b)(2) disclosure for each "covered" service provider. The DOL's Section 408(b)(2) rules require service providers to provide 401(k) sponsors with the information they need to assess the reasonableness of provider compensation and identify potential conflicts of interest.

For purposes of the 408(b)(2) regulation, a Covered Service Provider (CSP) is a person or entity who enters into a contract or arrangement with a plan and reasonably expects to receive $1,000 or more in compensation for providing services to a plan. There are four categories of CSP. These categories are described on the DOL website.

If a CSP fails to provide the required 408(b)(2) information, the contract or arrangement between the plan and the CSP is prohibited by ERISA, and the responsible plan fiduciary will have engaged in a prohibited transaction. In other words, while CSPs are required to provide a 408(b) disclosure, it's the plan sponsor's responsibility to ensure it's received.

2. Examine each 408(b)(2) disclosure for adequacy. CSPs must include the following information in their 408(b)(2) disclosure to the 401(k) sponsor:

  • A description of the services to be provided to the plan pursuant to the contract or arrangement.
  • Whether or not the CSP serves the plan in a fiduciary capacity.
  • All "direct" and "indirect" compensation the CSP, affiliate, or a subcontractor reasonably expects to receive in connection with the covered services. Direct compensation means fees paid directly from the plan.  Indirect compensation means fees paid from any source other than the plan or the plan sponsor (e.g., "revenue sharing").
  • A description of any compensation paid between the CSP and related parties.

More information regarding 408(b)(2) disclosure requirements can be found on the DOL website.

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