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Special Report:Advice: Guidance Counselors

The next generation of participant advice begins

The next generation of participant advice begins

In the lexicon of ERISA, perhaps only "404c" is more often misapplied and misunderstood than "advice." Still, in the decade since the Department of Labor (DoL) famously attempted to craft a workable line between education and advice, regulators, legislators, and the industry itself have done much to transform the ways in which participants are given help making decisions involving their retirement accounts (including no decisions at all—see " Taking It up a Notch ").

The most recent clarity came in the form of Field Assistance Bulletin 2007-01, which, in early February, noted the DoL's position that "a plan sponsor or other fiduciary that prudently selects and monitors an investment advice provider will not be liable for the advice furnished by such provider to the plan's participants and beneficiaries." The FAB also expanded on how that prudent selection and monitoring should be carried out, as well as its applicability to the new fiduciary adviser provisions in the Pension Protection Act (PPA).

"By clarifying the rules, the DoL has opened the door finally to those that currently offer ERISA participant investment education and advice, albeit with a very conservative tilt, more often than not having little to do with the participants' risk tolerance," observes Stuart Simchowitz, Managing Director at White Plains, New York-based Avenir Equity LLC. Indeed, one of the unexpected—and still most controversial—aspects of the PPA were provisions under which a "fiduciary adviser" could provide investment advice for a fee, subject to certain specific criteria. Jim O'Shaughnessy, founder of Northbrook, Illinois-based Sheridan Financial, says, "The PPA legislation and DoL guidance on advice finally give us [advisers] the basic framework and legal backing to provide advice to plan participants, while giving plan sponsors the fiduciary protection they need."

"[Still,] small-plan sponsors are mostly unaware of the consequence of the new advice legislation," notes Bill Heestand, President of the Heestand Company in Portland, Oregon. "Many have been buying from their non-fiduciary broker who has been delivering 'advice' to their participants—ERISA be damned," he cautions.

Advice is, in fact, offered through a variety of overlapping mediums, and what participants see may largely be a function of the size company they work for.  PLANSPONSOR's 2006 Defined Contribution Survey  (taken prior to the PPA's enactment) found that more than half (58%) of plan sponsor respondents currently offer financial/investment advice to participants. However, large employers were less likely to do so, and to do so via a third-party advice provider or DC recordkeeping provider, rather than via a financial adviser.

The PPA's fiduciary adviser provisions seem certain to expand on current trends, even if some financial services firms have yet to figure out how to navigate the law's restrictions on affiliate compensation. "Advisers are struggling on what the fiduciary adviser 'best practices' model looks like, trying to work through the structure of the review process, services provided, pricing, and models to use," acknowledges Sheridan. Still, he believes, "In the end, through supply and demand, these issues will work their way out efficiently, and the fiduciary adviser role will become integral to a successful retirement plan."

Heestand notes: "The number of providers and advisers who acknowledge their fiduciary status is so large that there is simply no good reason for a sponsor to 'stand naked on the fiduciary liability freeway' any longer!" In the meantime, the DoL's 2001 SunAmerica decision, which has provided many financial services firms with the ability to provide advice on their own funds for a fee (so long as the advice comes from an independent financial modeling entity) has meant that participants increasingly have access to what they really want, whatever we call it:   help in making investment decisions.



What To Watch/Watch Out For

1. The impact of automatic plan designs on the need for advice

2. Broad-based use of target-date funds versus a more ­­individualistic­ approach  

3. A more holistic approach to advice, including non-plan assets

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Nevin E. Adams
editors@plansponsor.com

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