Why does the new DOL Fiduciary Standard affect my clients and me?

This week, the Department of Labor (DOL) announced that on June 9, 2017, it will implement expanded fiduciary standards meant to protect retirement account owners. This has a direct impact on employers (and their advisors and vendors) who sponsor, sell and administer Health Savings Account (HSA) plans.

An HSA is not normally considered a retirement account, however, HSA’s are increasingly being used as such due to their triple tax-free structure (contributions are generally tax free as are earnings and withdrawals). If an employer (as the plan sponsor) or advisor (often their broker or agent) takes actions that cause the DOL to consider them fiduciaries, they are subject to the same wide range of rules and requirements with which investment advisors must comply.

In light of the emerging trend of using an HSA as a retirement savings vehicle and the expanded scope of the DOL’s fiduciary standard, employers and advisors should take a fresh look at the structure of and communications related to their HSA plans to ensure they are not taking actions that would create fiduciary liability, such as:

• The employer or their broker/agent provides specific investment advice regarding employees’ investment options within the plan.
• The broker or agent is receiving compensation from the HSA administrator that is excessive.
• Neither employer nor broker/agent exercise due diligence in selecting an HSA plan administrator to ensure that the administrator’s fee is reasonable and that the investment options within the plan are of good quality.

To avoid fiduciary liability, employers and agents/brokers should treat vendor selection, employee communication and ongoing monitoring of their HSA plan in much the same way they do their 401(k) plan as described in this helpful article published by the Society for Human Resource Management (SHRM). Key takeaways:

• Ensure that the fees charged to participants within the HSA program are appropriate and fully disclosed.
• Review education and communication materials and practices to make sure they do not constitute investment advice and recommendations.
• Stay on top of changing investment options being offered to employees participating in the HSA plan.

Resources
Benefit Specialist Magazine’s article: “Employer Responsibilities for HSA’s Under the New DOL Fiduciary Standards” provides more detailed analysis and recommendations (starts page 10).

SHRM’s article: “How the Fiduciary Rule Affects Retirement Plan Sponsors” provides excellent background on the matter along with recommendations, all from the employer’s perspective.