Fiduciary and Compliance Mistakes in 403(b) Plans
On June 5, the U.S. Supreme Court (the Court) issued a unanimous decision in the case of Advocate Health Care Network et al. v. Stapelton et al. that expands the ERISA exemption for church plans to include plans established by church-affiliated organizations. The decision is a departure from prior “plain text” judicial readings of the exemption, but it aligns with the interpretations of other federal agencies.
Update: As of April 4, 2017, the Department of Labor finalized a 60-day delay to the effective date of the new fiduciary rule (the Rule). The Rule was originally set to take effect April 10, 2017, but as a result of the delay, will become effective June 9, 2017. The delay is in response to President Trump's directive that the DOL review and report on how the Rule may negatively impact consumers.
Under the Affordable Care Act, insurance carriers are required to spend a minimum percentage of premium dollars on medical care and health care quality improvement. This minimum percentage is referred to as “medical loss ratio” (MLR) and is set at 85% for large group market issuers, 80% for issuers in the small group and individual markets. Any issuer that does not meet the MLR standard for a year must provide a rebate to its policyholders. MLR rebates for 2014 were due to policyholders by September 30, 2015.
Employers provide health insurance benefits to their employees and families because they want to be competitive with other employers, retain their workforce; and maybe, as a result of the employer mandate portion of the Affordable Care Act, are required to offer health insurance to avoid penalties.
The Employee Retirement Income Security Act of 1974 (ERISA) is federal law that regulates employer-sponsored health and welfare plans of all sizes – both fully-insured and self-funded. To ensure group health plan compliance, federal agencies such as the Department of Labor and the IRS are tasked with enforcing ERISA and its related laws, including HIPAA, COBRA, and now the ACA. Despite the complexity of these laws, employers can take steps to prevent the costly consequences of noncompliance. An ERISA gap assessment can serve as the first line of defense by identifying areas of weakness and addressing vulnerabilities.
Under the Affordable Care Act’s (ACA) employer shared responsibility rules, large employers are required to offer medical coverage to substantially all full-time employees – those who work an average of 30 or more hours per week. This expansion of the class of full-time eligible employees undoubtedly poses a challenge to many employers who must balance the need to comply with ACA rules with budgetary constraints.
Earlier this year, the U.S. Supreme Court heard arguments in the case of Tibble v. Edison International, a lawsuit that centered on an alleged breach of fiduciary duty by a 401(k) plan sponsor. On May 18th, the Supreme Court issued its unanimous opinion on Tibble.
UPDATE: The Supreme Court issued its unanimous opinion in Tibble on Monday, May 18. The Court ruled in favor of the 401(k) participants and held that ERISA’s fiduciary duty requires a continuing duty, “separate and apart from the duty to exercise prudence in selecting investments at the outset,” to monitor plan investments. Significantly, participants will be able to bring a claim of breach of the continuing duty of prudence so long as the alleged breach occurred within six years of the suit. Employers, therefore, must undertake consistent quarterly or annual reviews of investments, and must systematically consider the prudence of each investment at that time. Read the Court’s opinion here.