In Field Assistance Bulletin No. 2015-02 (the “FAB”), the U.S. Department of Labor (the “DOL”) discusses the application of the Annuity Selection Safe Harbor Regulations for Defined Contribution Plans. Here is what the FAB says.
The Issue. A regulation issued by the Department in 2008 at 29 CFR 2550.404a-4 regarding the selection of annuity providers under defined contribution plans (the “Safe Harbor Rule”) provides plan fiduciaries with safe harbor conditions for the selection and monitoring of annuity providers and annuity contracts for benefit distributions. However, questions continue to be raised about how to reconcile the “time of selection” standard in the Safe Harbor Rule — which embodies the general principle that the prudence of a fiduciary decision is evaluated under ERISA based on the information available at the time the decision was made — with ERISA’s duty to monitor and review certain fiduciary decisions.
Background. The current Safe Harbor Rule describes actions that defined contribution plan fiduciaries can take to satisfy their ERISA fiduciary responsibilities in selecting an annuity provider for benefit distributions. Similar to selecting plan investments, choosing an annuity provider for this purpose is a fiduciary function, subject to ERISA’s standards of prudence and loyalty. The Safe Harbor Rule requirements are satisfied if the plan’s fiduciary:
• Engages in an objective, thorough and analytical search for the purpose of identifying and selecting providers from which to purchase annuities. This process must avoid self-dealing, conflicts of interest or other improper influence and should, to the extent possible, involve consideration of competing annuity providers;
• Appropriately considers information sufficient to assess the ability of the annuity provider to make all future payments under the annuity contract;
• Appropriately considers the cost (including fees and commissions) of the annuity contract in relation to the benefits and administrative services to be provided under such contract;
• Appropriately concludes that, at the time of the selection [emphasis added], the annuity provider is financially able to make all future payments under the annuity contract and the cost of the annuity contract is reasonable in relation to the benefits and services to be provided under the contract; and • If necessary, consults with an appropriate expert or experts for purposes of compliance with these provisions.
For this purpose the Safe Harbor Rule provides that “the time of selection” means:
1. the time that the annuity provider and contract are selected for distribution of benefits to a specific participant or beneficiary; or 2. the time that the annuity provider is selected to provide annuities as a distribution option for participants or beneficiaries to choose at future dates.
The Safe Harbor Rule also provides that when an annuity provider is selected to offer annuities that participants may later choose as a distribution option, the fiduciary must periodically review the continuing appropriateness of the conclusion that the annuity provider is financially able to make all future payments under the annuity contract, as well as the reasonableness of the cost of the contract in relation to the benefits and services to be provided. The fiduciary is not, however, required to review the appropriateness of its conclusions with respect to an annuity contract purchased for any specific participant or beneficiary.
ERISA’s Prudence Standard Applied to the Selection and Monitoring of Annuities. Section 404(a)(1)(B) of ERISA provides that a fiduciary must discharge his duties with respect to a plan with the care, skill, prudence, and diligence under the circumstances then prevailing [emphasis added] that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims.
Consistent with this statutory language, the prudence of a fiduciary decision is evaluated with respect to the information available at the time the decision was made – and not based on facts that come to light only with the benefit of hindsight. The conditions of the Safe Harbor Rule embody this general principle of fiduciary prudence. A fiduciary’s selection and monitoring of an annuity provider is judged based on the information available at the time of the selection, and at each periodic review, and not in light of subsequent events.
The periodic review requirement in the Safe Harbor Rule does not mean that a fiduciary must review the prudence of retaining an annuity provider each time a participant or beneficiary elects an annuity from the provider as a distribution option. The frequency of periodic reviews to comply with the Safe Harbor Rule depends on the facts and circumstances. For example, if a “red flag” about the provider or contract comes to the fiduciary’s attention between reviews (e.g., a major insurance rating service downgrades the financial health rating of the provider or several annuitants submit complaints about a pattern of untimely payments under the contract), the fiduciary would need to examine the information to determine whether an immediate review is necessary, or, depending on the facts and circumstances, the fiduciary may need to conduct an immediate review.
The FAB continues with several examples on the above, and a discussion of ERISA
statute of limitations on fiduciary liability for the selection of annuity providers and annuity contracts.