“My client, who has a 401(k) plan, timely distributed the plan’s annual fee disclosure in the comparative chart format. The next month, an expense ratio changed for one of the designated investments under the plan. Must my client provide a new comparative chart to show the change?”
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Highlights of discussion
- Pursuant to Department of Labor Regulation Section (DOL Reg. §)2550.404a-5 [1], plan sponsors must initially, and at least annually thereafter, disclose plan information and investment-related fee information to participants of 401(k) plans.
- The investment-related fee information can be provided in a comparative chart format.
- Plan sponsors need only provide one comparative chart to participants and beneficiaries per year. If there is a change to a designated investment alternative’s fee and expense information after the plan administrator has furnished the annual disclosure (“comparative chart”) to participants and beneficiaries, the plan sponsor is not required to issue a second disclosure (Field Assistance Bulletin 2012-02R [2], Q&A 22).
- However, fee and expense information must be made available on a Web site (Field Assistance Bulletin 2012-02R [2], Q&As 17 through 19). Information made available on the Web site must be accurate and updated as soon as reasonably possible following a change (Field Assistance Bulletin 2012-02R [2], Q&A 19). The Web site also should reflect the date on which it was most recently updated.
- Additionally, under extraordinary circumstances, the duties of prudence and loyalty under ERISA § 404 may require the plan sponsor to inform participants and beneficiaries of important changes to investment- related information before the next comparative chart is required under the regulation (please see 75 FR 64922, footnote 17 of the preamble to the final regulation [3]).
- Note that a description of changes to plan-related information must be distributed at least 30 days, but not more than 90 days, in advance of the effective date of any change, unless the inability to provide such advance notice is due to events that were unforeseeable or circumstances beyond the control of the plan administrator, in which case notice of such change must be furnished as soon as reasonably practicable (Section (DOL Reg. §)2550.404a-5 [1]).
Conclusion
- A plan sponsor need only provide the annual comparative chart that reflects its 401(k) plan’s fee and expense information once per year, regardless of whether the information changes during the year. However, the coordinating Web site must reflect the most up-to-date fee information available.
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