March 31, 2014
Authored by: benefitsbclp
Earlier this month, the Department of Labor published a proposed amendment to its February 2012 final regulations regarding the disclosures concerning services and fees that service providers must furnish to plan fiduciaries to permit the fiduciaries to determine that the contracts or arrangements with the service providers were “reasonable” as required by ERISA Section 408(b)(2). Under the amendment, service providers would be required to furnish plan fiduciaries with a “guide” to the fee disclosures required under ERISA Section 408(b)(2) in certain circumstances.
The 2012 final regulations (which generally became effective July 1, 2012) did not require service providers to provide the disclosures in any particular format. Moreover, the preamble to the regulations acknowledged that the disclosures could be made in multiple documents so long as the documents collectively disclosed all of the information required.
The proposed amendment is intended to introduce a guide to assist fiduciaries in locating the information they need to assess the reasonableness of the services provided and fees charged by the service provider. The guide is required if the disclosures are made in multiple documents or a “lengthy” document. The Department has requested comments on the page requirement that would trigger the index requirement as well as whether future guidance should include formatting standards (such font or margin requirements) to avoid manipulation of any adopted page requirement. The guide must identify the document and page or other sufficiently specific locator, such as a section, that enables the plan fiduciary to “quickly and