Late Breaking Developments

We want to call your attention to some recent developments.

  1. Effect of the Presidential Election on the April 10, 2017 DOL Fiduciary Rule. As we discussed in prior e-Alerts, earlier this year the DOL published a final regulation that, among other things, greatly expands the definition of “fiduciary” under ERISA and the Internal Revenue Code and that has significant implications for employers (and even more significant implications for service providers to employer plans, IRAs, HSAs and retirement investors).

Although the regulations are currently “effective,” their first “applicability date” is April 10, 2017. The self-identified “lead advisor” to the President-elect on these regulations has stated that the regulations will be “repealed” before April 10, but recent commentary has suggested that doing so will be too much of a heavy-lift for the new administration to handle (or that the “populist protection” nature of the regulations argues against their withdrawal).

We expect that our employer clients will table for now active efforts to react to the rule, but will monitor developments very closely and continuously, so if it appears that the rule will become applicable on April 10, they have time to ensure that they have taken appropriate steps before that date. (Unfortunately, investment advisors and other service providers to plans, IRAs, HSAs and retirement investors likely do not have the luxury to take a wait-and-see attitude because of the significant amount of work they must do to be in compliance by April 10.)

Some plan vendors have presented our clients with “new DOL fiduciary rule service agreement amendments,” some of which contain provisions that expose the employer to unnecessary or inappropriate risks. We are advising our clients that these documents should be carefully reviewed by us before they are signed.

  1. Effect of the Presidential Election on the Current ERISA Plan Fiduciary Lawsuits. As we also discussed in prior e-Alerts, there is a veritable explosion of class action, individual plaintiff, and DOL lawsuits against ERISA plan sponsors alleging that they breached their ERISA fiduciary duties by failing to have the best possible plan investments, the best possible plan vendor fees, and the best possible vendor service quality.

Perhaps not surprisingly, some employers have gotten the mistaken impression that, if a withdrawal of the new DOL fiduciary regulation occurs, it will affect their level of risk with respect to these issues and these lawsuits. Actually, the arguments made by the plaintiffs and the DOL in these lawsuits are based on long-standing principles that have existed since 1976 (and earlier in some cases), and therefore whether the new regulations become applicable will not affect employers’ level of exposure to being sued.

It is critical that all employers that sponsor ERISA-governed plans take the steps outlined in our prior e-Alert to build a wall of defense against the possibility that they will be next in line for a lawsuit.

  1. Delay of Deadline for 2016 Form 1094/1095 Reporting. The IRS recently extended from January 31, 2017 until March 2, 2017 the deadline by which employers (and/or their health insurance carriers) must provide 2016 Form 1095s to their employees.

The deadline for providing those Forms electronically to the IRS has not been extended from its original March 31, 2017 date. (Employers who are eligible to submit paper forms to the IRS and who wish to submit in paper must send those paper forms to the IRS by February 28, 2017.)

The IRS also extended 2015’s “good faith” standard for accuracy on the forms to cover the 2016 forms.

Although there is considerable talk about the repeal or “repeal-and-replace” of the ACA, it is unlikely that the requirement for providing the 2016 Forms will be affected. Similarly, self-funded health plan sponsors/employers must be sure to submit their $27 per covered life ACA PCORI fee no later than the January 15, 2017 deadline (or a first payment of $21.60 per covered life by January 15, 2017 and a second payment of $5.40 per covered life by November 15, 2017.)

Please contact us if we can be of any assistance in addressing these developments.