(b)lines Ask the Experts – Vendor Fails to Provide Fee Disclosure

July 10, 2012 (PLANSPONSOR (b)lines) – “Hope the Experts had a wonderful 4th of July! As for me, not so much, since I discovered that one of the vendors for my ERISA 403(b) plan, despite our best efforts, has yet to provide us with the required service and fee disclosures under 408(b)(2). What do I do now?”

Michael A. Webb, vice president, Retirement Plan Services, Cammack LaRhette Consulting, answered: 



Yes, the Experts had a wonderful holiday; thanks for asking! And, fortunately for you, the Department of Labor (DOL) specifically addressed the issue of service providers missing the July 1 deadline to provide the service and fee disclosures required under 408(b)(2) in its changes to the final fee disclosure rule issued in February (http://www.dol.gov/ebsa/408b2changes.html) . Specifically the DOL stated that the responsible plan fiduciary should send a written request for the information.  



In addition, the DOL provided the format for a model written request, (http://www.dol.gov/ebsa/DelinquentServiceProviderDisclosureNotice.doc), so all you need to do is fill in the specific vendor and plan information and send to the vendor.  



The Experts note that vendors may not be required to provide disclosure on some 403(b) contracts or accounts.  That may be the case, for example, where the 403(b) contract or account is also grandfathered from having to be included for 5500 reporting purposes under DOL Field Assistance Bulletin 2009-02. See, Field Assistance Bulletins 2010-01 and 2009-02, and 29 CFR § 2550.408b-2(c)(1)(ii). If that is the case, they may simply advise you of that.   



If the provider does not respond within 90 days, then the fiduciary must notify the DOL through an online filing system. The system is currently in development, but will appear under the following link when finalized: http://www.dol.gov/ebsa/regs/feedisclosurefailurenotice.html. Hopefully, the vendor will respond within 90 days, as the final rule also requires that the contact between the fiduciary and service provider be terminated as soon as possible following the 90-day period. Since potential contract termination is a major issue, you will likely wish to involve benefit counsel well versed in 403(b) plan issues in this matter as well. 



Good luck with obtaining the required disclosure from your vendor! 




NOTE: This feature is to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.