QDIA Notice Requirements - Is Your Plan In Compliance?

One of the most notable outcomes of the Pension Protection Act of 2006 (PPA) was a focus on making defined contribution plans (such as 401(k) plans) look and act more like defined benefit plans.  The PPA encouraged plan sponsors to implement plan design features such as automatic enrollment and automatic deferral increases (alternatively known as automatic escalation) to combat the problem of employee inaction with regard to retirement saving.  Much of the impetus for these features was based on important research in behavioral economics and pioneered in part by Richard Thaler and Schlomo Benartzi who wrote a landmark paper in 2003 entitled Save More Tomorrow: Using Behavioral Economics to Increase Employee Saving.

With automatic enrollment, employees who fail to make an affirmative election with regard to participation are automatically enrolled in the plan and make contributions at a specified percentage or level of pay (e.g. 3%).  Since saving for retirement first requires participation, automatic enrollment is an effective approach to getting employees into the plan.  Prior to PPA, most employers would "default" automatically enrolled participants into a "safe" investment such as a stable value fund or money market account.  Prior to the passage of the PPA, plan fiduciaries did not have protection under ERISA § 404(c) unless a participant exercised actual control over their account. This meant that fiduciaries could potentially be held liable for losses incurred in default investments if they were deemed “imprudent”.  The logic (and guidance) behind defaulting participants into low-risk investments such as these was to protect plan fiduciaries.

However, the PPA determined that these types of investments, while generally suitable for protecting principal, were ineffective for long-term retirement saving.  Therefore, the PPA provided requirements for the permitted types of investments that automatically enrolled participants must be defaulted into, otherwise known as qualified default investment alternatives (QDIAs).  A QDIA is generally described as a balanced fund, a life-cycle fund (based on the participant’s age or target retirement date) or professionally managed account.  The PPA also provided that QDIA investments would provide safe harbor relief for plan fiduciaries so long as these investments were prudently selected and monitored.  

The final QDIA regulations went into effect on December 24, 2007 and were effective for plan years beginning on or after January 1, 2008.  However, initial and ongoing fiduciary protection was (and is) not automatic as it requires that participants receive proper disclosures.  Specifically, advance notice pertaining to a QDIA must be provided to participants at least 30 days in advance of the date of plan eligibility or 30 days in advance of the first investment in a QDIA. In addition, all plan participants who are defaulted into a QDIA must be given an annual notice at least 30 days (but no more than 90 days) before each subsequent plan year.

For calendar year plans, December 1, 2008 was when the first subsequent QDIA notices were due.  Having helped numerous clients navigate the delivery of these notices, I thought it would be helpful to address some practical observations.

1. QDIA compliance is optional not mandatory - Much like 404(c) protection, simply failing to deliver the QDIA notices on time doesn't mean the plan is out of compliance.  Generally speaking, it only means that no fiduciary relief is available for the plan year.  There are certain questions as to whether protection is lost for the entire year if not delivered at least 30 days ahead of time or whether protection is provided beginning 30 days after the notices are delivered.  For instance, if notices are delivered on December 10th, does protection begin 30 days from that point?  To my knowledge, there has been no official guidance on this point from the DoL or IRS.  Thus, I think a "better late than never" approach is a good idea.

2. There is often (significant) confusion from both the plan sponsor and provider around who is required to receive a QDIA notice - The regulations state that a notice must be delivered to defaulted participants and beneficiaries (both active and terminated) who have failed to direct their investments If a participant directs any part of their account they are no longer considered to be in a QDIA and do not need to receive a notice.  In fact, the preamble to the regulation specifically states that “[N]o relief is available when a participant or beneficiary has provided affirmative investment direction concerning the assets invested on the participant’s or beneficiary’s behalf.”  I have found that there is quite a bit of confusion/misunderstanding, even by providers, as to what types of participants need to receive the notice as well as identifying the specific participants.

3. There is even more confusion around who is responsible for delivering the notices - Most of the confusion lies with plan sponsors who think their recordkeeper, TPA and/or adviser is taking care of identifying who needs to receive these notices and making sure it gets done.  This is almost always not the case.  I had two separate instances where a very large provider with otherwise excellent reporting systems had trouble identifying who needed to receive notices and only sent the required notices to a subset of these participants.  Even further, the plan sponsor was required to send notices out to the remaining eligible participants but this was not clearly communicated to them nor was it easy to report on who the outstanding participants were.  Luckily, after several weeks of back and forth communication between the plan sponsor, the provider and myself were we able to identify the issues, run several reports to determine who the remaining participants were and take action just prior to the December 1 deadline.  We also made sure to keep clear documentation of the process we followed to ascertain who the necessary participants were and what steps were taken to create and deliver the notices.  If this happened with one of the largest and most capable providers in the industry it scares me to think what is happening with most other providers around the country.

4. Clear delineation/communication of roles and responsibilities and proper procedures are critical - Sound governance requires someone to "drive the bus" and make sure that everyone knows and understands their duties and are actually following through.  The confusion I often see between plan sponsors and their service providers leads me to believe this communication generally doesn't take place.  Additionally, not having clear processes in place means that gaps are going to exist.  QDIA notices are only one of many ongoing requirements a plan needs to run smoothly, achieve its objectives and remain in compliance.  Most plans lack process and oversight which are very clear ways these plans can be fixed so that participant outcomes are improved and fiduciaries are protected.  Ultimately, however, someone (preferably a knowledgeable fiduciary) must step up, take responsibility and get things done.

5. Many fiduciaries mistakenly think their plans are in compliance and eligible for fiduciary relief but are not - Although I don't have specific numbers to cite, my experience over the past couple of months leads me to believe that the fiduciaries of most plans with automatic enrollment are not receiving QDIA protection for 2009 because the notice requirements were never fulfilled.  Again, this speaks to a breakdown in communication and process.  I think it also serves as an example of how most fiduciaries have a false sense of security as to their responsibilities and the successful operation of their plans.