There has been a discussion circulating around Washington for a number of years about the value of establishing a simplified Defined Contribution retirement system commonly referred to as "401(x)".  This program would create a single defined contribution program with a single set of rules to replace the "alphabet soup" of DC plans currently in existence.

Many product vendors have championed this cause, particularly through organizations like the Investment Company Institute, the mutual fund companies’ trade group. Even the U.S. Chamber of Commerce’s chimed in with support in a policy report in 2007. It is an attractive notion. The claim is that the system is far too complex for employers, and that going to a single, simplified program would work to everyone’s benefit.

I have always viewed this as a dubious claim.  "401(x)" seems to be a program that is more centered on the self-interests of a handful of vendors for which such a program would save much expense; it is not one which is designed to benefit employers. While it is true that  ASPPA and Metlife count no less than 17 types of DC plans (see the Metlife’s excellent chart , which was also published by ASPPA in its latest Journal), and I could probably add a few more, it is also true that these programs did not arise in a vacuum. We have a complex, sophisticated employer base in the United States.  It stands to reason that an effective retirement program cannot be based on a "one size fits all" concept. Does it make sense that a small, 5 employee charity has the same design as a publicly traded company with 150,000 employees? I think not. Does it make sense that a start-up sole proprietorship has the same program as a large international company that is over 100 years old? I think not.

These 17 plans are there for a reason: both the marketplace and valid policy concerns have insisted that they be there. Each of the plans have a particular purpose, a particular market whose purposes they serve. Trying to force it otherwise will be disruptive to those same forces which enabled those program in the first place. I do not doubt that these programs may need a bit of tweaking, but the fundamental concept remains: they were each created in response to a (at least perceived) specific policy concern  and need of the marketplace.

The classic example of the potential disruption which can be caused by a "401(x)" approach is found in the implementation of the new set of 403(b) regs. 403(b) plans were designed as individual pensions for employers that could ill-afford highly complex retirement plans. They have worked well for over 50 years. But since the IRS has taken upon itself the view that these should be treated like 401(k) plans, it wrote a set of regs which actually acts as a sort of "backdoor 401(x)."  While I understand and support the notion that the serious non-compliance the IRS found needed to be addressed,  the chosen approach to enforcing compliance is creating awful results. The transition costs have been unexpectedly high for the retirement industry (including many vendors which had originally supported 401(x)) and has created a growing anger and frustration in the bar and in the 403(b) plan sponsor community.  The new rules attempt to force a well designed individual pension program into an employer program that large parts of the market are ill-equipped to handle.  We will likely see, as the year progresses, a regulatory and enforcement nightmare.

It is this nightmare, I believe, that exposes the serious shortcomings of the concept of "401(x)." It doesn’t serve marketplace needs; there is no significant  policy it serves; and it has large, hidden transition costs.  The New York Times noted the lack of political will to do a single simplified program in its recent  article discussing  Workplace Pensions.  The Workplace Pension program sits on top of the current system, addresses a serious policy need and marketplace need, and does not attempt to replace the current system with thoughtless uniformity. It is a lesson which I hope policymakers remember as they discuss the revamping of the current system, one which should dissipate any notion of a "401(x)."

I was intending to leave this issue alone for a few weeks, and wait until the Workplace Pension proposal (upon which we blogged a few days ago) had a chance to percolate within the retirement industry. But I had the chance to spend a few minutes with David John (David is a senior scholar at the Heritage Foundation and is one of the Principals of the Retirement Security Project) in DC this week, and he spoke of this program-one on which he and Mark Iwry have spent years developing. The conversation set me to thinking.

Those of us who have spent serious time within a large organization, whether it be a financial services company, a manufacturing company or a governmental agency,  all have many war stories on these organizations’  capacity to ignore lessons from their own pasts-even their recent pasts. I would argue (digressing for a moment) that many of our current economic problems arise from us ignoring our history-not remembering that the anti-trust rules were there in part to prevent a handful of companies and individuals from amassing so much economic strength as to be able to wrack havoc on the entire economy.

So what does this have to do with the President’s proposals for Workplace Pensions? The retirement markets have a long and rich experience in dealing with salary deferral programs which can well inform the structure of this new program. We know what things work, and what things have been a disaster. 

This proposal is  unique in that it DOES recognize our experience. It has the support of both ends of the political policy spectrum (scholars from both Brookings and Heritage have lent their weight), which is likely because it uses well learned lessons of our past.

Some thoughts of what this thing may look like:

  • Yes, the proposal really does look a lot like the simple, old 403(b) programs. Though the legislative proposal is not yet written, the idea is designed to rely upon marketplace products. The twist is that vendors will be listed in a program designed on the successful parts of Medicare Part D. And simplicity is a key.
  • It will recognize the need for safe, "stable value" like investments for a while, until the employee can weigh in on where the money will be invested.
  • There will be "COBRA -like" rules for small employers, and there will "403(b) like" rules for part-time and short term employees.

Fee transparency will be important, and there is even some discussion of the making available the purchase of lifetime income guarantees.

There will be a number of technical issues that will come up as this thing progresses. Some may have been addressed, but they are worth noting:

  • We need to avoid the 403(b) disaster, which has arisen from trying to force an individual pension program into an employer program mold.
  • The tensions with Title 1 of ERISA will need to be addressed. A way needs to be found to balance employee protection (for example, on the deposit of the funds) with limits on employer responsibility.
  • There are a number of technical security law rules which need to be addressed, as most of these products will be registered investment products. Touchy issues such as suitability, prospectus delivery, and whether, practically,  an employer can force the purchase of a registered product.
  • Data, we have learned over time, is ugly. Privacy of data is critical. So the lesser the data requirements, likely the better.

I expect that there is much discussion and negotiation yet to be had. Of course, there is likely to be a grand policy debate on whether this sort of program will ultimately lessen the use of traditional 401(k)  and profit sharing plans, undermining incentives for employers to contribute to their employees’ retirement.

But the thoughtfulness and bipartisan manner in which the proposal has been developed leads me to believe that these sorts of issues (and others) will be well addressed. It is  a welcome breather from the often frantic approach to policy we have seen emerge in the past few years.

 

 

President Obama’s new budget proposes the establishment of a new "Automatic Workplace Pension" (see pages 84 and 85 of the OMB’s budget description and David John’s description at the Heritage Foundation’s site). It is based upon proposals from the Retirement Security Project run by Mark Iwry, David John and William Gale.

There is little doubt that the proposal will catch a lot of heat, as the logistics of establishing this type of program seems, at first glance, to be almost overwhelming. A number of trade groups are already discussing the issue of what kind of financial products and services can and should be used to implement this proposal, and there doesn’t seem to be an easy answer at first glance.

But there really may be an answer. The good Mr. Iwry and I have been talking about his proposal for a few years now, and it strikes me how similar this proposal is to the original 403(b) programs of the past.  Nearly 50 years ago, 403(b) programs were designed as individual pensions.  The employer’s sole responsibility was to make sure the employee’s deferrals were sent to the company of the employee’s choosing. The design was very similar (and actually still is today) to the IRAs which were adopted some 20 years or so later, more so than the qualified plans that the IRS is now trying to make them out to be.

Think about the delivery system which was successfully established by the marketplace for those early 403(b) programs. The tax-exempt employers agreed to which vendors they would permit deferrals, and the vendors came in and did the rest. They were (and still are) registered products (to the extent they provide equity based investment accounts) which are required to be sold by registered representatives. The employees owned the products, or had individual certificates under group annuities, which were completely portable. Revenue Ruling 90-24 gave employees the right to transfer their money tax free to another 403(b) investment product, making them REALLY portable.

In short: the marketplace has proven its ability to make this kind of program work, using the old 403(b) model.  Is there any reason why this shouldn’t serve as the basis for this new proposal?

There is a curious side bar to all of this, though. The IRS has spent the last 15 years trying to force the individually based 403(b) program into an "employer" based model. The IRS may face a new challenge, as the Automatic Workplace Pension proposal may well be 403(b) on steroids. It would seem to offer an alternative to all those non-ERISA 403(b) plans who find themselves being "ERISAfied" by the new 403(b) regulations.

THIS is going to be interesting…..

For a blog discussion thread on the Automatic Workplace Pension, check out the Bogleheads blog.

 

 

I mentioned in a posting last week that we will take some time on this blog to work through a number of the legal and technical issues related to annuitizing out of 401(k) plans. This, in effect, allows the 401(k) plan to offer the best features of the Defined Benefit and Defined Contribution plans without the huge burdens that typically are associated with DB programs.

You would think from the number of articles written in the past several years condemning the use of annuities in qualified plans that any plan sponsor would be off their rocker to even consider making this benefit available under their plan.  So I think It is well worth noting the value of these types of insurance products before we get lost in the "technical weeds" of annuitization. Annuities do something that no other financial service product in the world (other than life insurance) can do: they pool our common interests for the general benefit of all.

But most folks see the "price"of this pooling as being a bit too "salty" for their tastes-they stay away from annuities because those contracts provide a benefit which is generally inflexible, inaccessible and  invisible. Or, as my brother has put it, its just a bet against the insurance company which the insurance company will win.

That world is now changing. As an example,  Transamerica and Lincoln Financial have just finished round one in their litigation over the enforceability of a patent of an annuity design which both pools interests and gives policyholders control. Each of the major insurance carriers have been developing similar products as well, trying to address policyholder concerns over balancing liquidity with security.

So, finally, it appears that there will be annuity products available in the marketplace which serves policyholders well. The technical challlenge is to successfully fit  these new products into defined contribution plans where there is a great need for a "defined benefit" type of program. I would hope then that the value we each receive from the pooling of our common interest would get the favor it deserves.

 

 

When the IRS extended the deadline for meeting the written plan requirement for 403(b) arrangements from January 1 to December 31, 2009 in Notice 2009-3, it did so with some conditions attached. In particular, the IRS is requiring sponsors to operate their plans during 2009 in accordance with a reasonable interpretation of 403(b) and the final regulations.    The Notice also requires 403(b) plans to make its best efforts to correct any operational failure that occurs in 2009 by the end of the year. Therefore, while the Notice was very welcome, relieving some of the pressure caused by the original deadline, it is hardly a one year’s free pass from compliance with the final regulations.

Under the final regulations, one of the biggest challenges for plans with multiple investment providers is to establish procedures so that the venders can effectively share information with the employer and with each other.   Historically, each investment provider in 403(b) plans has operated largely independently, typically with little or no communication between them. Changing this structure to facilitate compliance across investment providers is a significant task that will not happen overnight.   

A number of investment providers, individually and together (most notably, through the SPARK Institute data sharing standards) have made efforts to provide services that try to tackle this issue. (The various information sharing services that are emerging will be discussed in a subsequent post.) But many plans have yet to implement any form of process for exchanging plan information. Even more critical, many plans have also not yet resolved the question of who is ultimately signing off on plan transactions such as loans or hardship withdrawals: the plan administrator, the vendor, or a third party.

Despite the Notice 2009-3 delay and encouraging statements from IRS officials about how the IRS is not “expecting perfection”, plan sponsors should not lapse into complacency in 2009. Now is the time to establish effective compliance programs that integrate information from all the investment providers.

 One of the biggest challenges for the benefits professional is trying to weed through all of these new 403(b) rules, and explain them in a meaningful way to their clients. Monica and I wrote this checklist designed specifically for that purpose-to give advisors a tool to use when they need to work with employers on their 403(b) issues.

This list is not intended to  replace the employer’s need to do a compliance review. This is designed help advisors educate employers about the challenges they face, and in an organized way. 

You are welcome to use the checklist for personal use. If you intend to reproduce it for any other use, please contact us for permission.

 

It is back to the future, in an odd sort of way. There is growing trade press coverage on the interests of 401(k) plans and plan participants on turning a portion of participants’ account balances into a "defined benefit-like" guaranteed income stream. Follow, for example, this link to Plan Advisor.com.

There are really two ways transform that 401(k) account balance into annuity payments.  The first is to annuitize from within the 401(k) plan itself. This means that you need to

  • take care that you don’t turn the 401(k) plan into a defined benefit plan;
  • deal with the pesky issue of handling an "outside asset" not typically held by the plan’s custodian; and
  • figure out how to make those guarantees portable.

The second way is to offer a distribution option from the plan of a  "plan distributed annuity." This opens up a whole world of guarantees that can be provided using a 401(k) account balance, as well as being a potential answer to the portability issue mentioned above.  

We will post over the next several weeks a number of blogs which will discuss some of the legal and technical issues related to these sorts of programs. For starters, if you’re interested, take a look at the articles we published with BNA and CCH last year which discusses some of the legal issues involved: 

Please note that the reference in the BNA paper to my former law firm is now incorrect!

We look forward to carrying on the conversation.