Annual Retrospective Review – What does it Mean for Advisors?

  

Annual Retrospective Review - What Does it Mean for Advisors?

The DOL’s Prohibited Transaction Exemption (PTE) 2020-02 (Improving Investment Advice for Worker’s & Retirees) gives registered investment Advisors and their representatives the ability to receive compensation when providing investment advice to ERISA retirement plans, participants, and IRA owners. AdvisorAssist has previously provided guidance on the requirements of PTE 2020-02 in the corresponding blog post, but this post elaborates on the regulatory requirement for Investment Advisors regarding the Annual Retrospective Review. As a reminder, Advisors must conduct an Annual Retrospective Review and record their findings in a written report within six (6) months after the end of the year, or by June 30th.

The DOL has published FAQs, which provide additional guidance regarding an Advisor’s requirement to perform an Annual Retrospective Review of their covered recommendations in Question 19. Defined, the Annual Retrospective Review is a review that must be reasonably designed to assist the Investment Advisor in detecting and preventing violations of, and achieving compliance with, the Impartial Conduct Standards and the Advisor’s policies and procedures. Whichever methodology the Advisor chooses for their review, and its applicable results, must be reduced to a written report. This written report can either be provided to a Senior Executive Officer of the firm, or as circumstances require, created by the Senior Executive Officer in cases of smaller sized firms.. The officer required to certify the report will be attesting that they have reviewed the report in its entirety, inclusive of any violations, and that the Advisor has policies and procedures in place prudently design to achieve compliance with the exemption. Investment Advisors are required to retain the report, certification, and applicable supporting data for a period of six years along with the ability to produce these documents to the DOL within ten business days if requested.

When Investment Advisors are reviewing, assessing, and documenting the Firm’s overall control environment in regards to PTE 2020-02 and the Impartial Conduct Standards, they should review their current control framework by asking such questions as:

• Does the Advisor have a prudent process to modify current policies and procedures as business, regulatory and legislative changes and events dictate?
• Does the Advisor have the ability to test the effectiveness of the policies and procedures on a periodic basis, the timing and extent of which is reasonably designed to ensure continuing compliance with the conditions of this exemption?
• When reviewing Advisor’s current internal work flows, do they align with what is currently published in written manuals?
• Does the Advisor have policies and procedures which ensure compliance with the Impartial Conduct Standards including:
• How an Advisor investigates and evaluates investments, provides advice, and the requirement to act prudently in their recommendations?
• That an Advisor acts with loyalty when making recommendations and never places their own interest ahead of the client?
• That an Advisor charges no more than reasonable compensation and complies with federal best execution laws?
• That an Advisor can not make misleading statements about investment transactions, or related data points, to entice clients into transactions?
• Has the Advisor mitigated any conflicts of interest that may affect them, and adequately documented how those conflicts are mitigated?
• Does the Advisor provide applicable written acknowledgments of the firm's ERISA fiduciary status?
• Does the Advisor have a process in place to identify all covered transactions during the review timeframe, and furthermore delineate those results into solicited transactions versus client-initiated transactions?
• For any client-directed rollovers, does the firm provide clients with a separate and distinct acknowledgment form where the client attested that the firm did not solicit the rollover?
• How is the Advisor tracking document and disclosure delivery, and can the Advisor prove all applicable documents and disclosures were delivered when required?
• Does each solicited transaction document the specific reasons for recommendations made to retirement clients, applicable due diligence conducted, costs associated, and whether the recommendation was in the client’s best interest?

PTE 2020-02 does contain the ability for Investment Advisors to correct certain violations within 90 days after the Investment Advisor learns, or reasonably should have learned, of the violation. Assuming the violation did not cause investment losses to the retirement client, and/or the Investment Advisor has made the client whole, the firm needs to notify the Department within 30 days, and the violation and correction must be specifically set forth in the written report of the retrospective review. Although not an exhaustive list, certain examples of violations could be:

• A transaction that inherently violates the Impartial Conduct Standards, and does not align to the fiduciary standards placed on representatives.
• Not having adequate policies and procedures to comply with all components of PTE 2020-02 or an update mechanism to enhance for any corresponding internal or external change required such as new business lines, enhanced regulations, etc.
• Not disclosing material conflicts and/or not providing required documentation and disclosures to the client during the transaction process which could have a material impact on their decision making such as:
• Not providing a comparable review of the costs associated with the current plan versus the proposed investment solution such as internal expense ratios, advisory fees, custodial fees, commissions, etc.
• Not providing a comparable review of the account characteristics of the current plan versus the proposed investment solution i.e legal protections, surrender timeframes, loan applicability, and/or tax ramifications.
• Not providing a comparable review of the characteristics of the current plan’s investment options versus the proposed investment solution such as product type availability or, share class availability.

With the results of the Retrospective Review in hand, Investment Advisors can find more effective ways to ensure their representatives are providing investment advice that aligns to the Impartial Conduct Standards, and strengthen the firm’s policies and procedures. AdvisorAssist Consultants are here and ready to assist Adviser’s in any compliance capacity needed. Should you have questions, please don’t hesitate to reach out today.

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ERISA Fiduciary - Improving Investment Advice for Workers and Retirees

  

ERISA Fiduciary
Improving Investment Advice for Workers and Retirees

On December 18, 2020, The Department of Labor (“DOL”) adopted Prohibited Transaction Exemption 2020-02 (“PTE 2020-02”). PTE 2020-02, called Improving Investment Advice for Workers and Retirees, expands the definition of advice covered under ERISA law to include recommendations about retirement plan rollovers and Individual Retirement Accounts (“IRAs”). PTE 2020-02 went into effect on February 16, 2021, and included a non-enforcement policy until December 20, 2021.

The result of expanding the DOL definition of investment advice to include recommendations to rollover a client's assets from an ERISA sponsored retirement plan to an IRA is significant, as ERISA fiduciaries are prohibited from engaging in transactions where they receive increased compensation as a result of the advice provided, otherwise categorized as “conflicting advice”. There is a myriad of disclosures and policies and procedures that require implementation in order to receive compensation for rollover recommendations.

The DOL has established a Five-Part Test in order to assist advisors in determining whether a recommendation to roll over retirement plan assets into an IRA falls under ERISA. The regulation states that a person provides “investment advice” if he or she: (1) renders advice to a plan or participant as to the value of securities or other property, or makes recommendations as to the advisability of investing in, purchasing, or selling securities or other property; (2) on a regular basis; (3) pursuant to a mutual agreement or understanding; (4) that such advice will be a primary basis for investment decisions; and that (5) the advice will be individualized to the plan or participant.

How does this impact Registered Investment Advisors? Many that once did not offer retirement plan advisory services will now find themselves subject to the ERISA fiduciary standard when providing recommendations to roll over a participant’s retirement plan assets into an IRA. Certain of these requirements and standards were already required under the Investment Advisers Act of 1940 (“Advisers Act”), so the DOL requirements below shouldn’t come as a major surprise. Under the DOL there are requirements to adhere to the following:

1. acknowledgment from the advisor of their fiduciary status under Title I of ERISA and the Internal Revenue Code;
2. due diligence and written documentation of the specific reasons that any recommendation to roll over assets (whether from an ERISA plan to an IRA, from one IRA to another IRA, or from one type of account to another (e.g. commission-based account to fee-based account) is in the best interest of the client.
3. written disclosure to clients that include (i) the scope of the relationship, (ii) all material conflicts of interest, and (iii) the reasons the rollover recommendation is in their best interest;
4. compliance with the Impartial Conduct Standards which includes (i) provide prudent investment advice, (ii) charge only reasonable compensation, and (iii) avoid misleading statements; and
5. an annual compliance review with the results in a written report to a Senior Executive Officer of the advisor.

ACKNOWLEDGEMENT OF FIDUCIARY STATUS

The written fiduciary acknowledgment is designed to ensure that the fiduciary nature of the relationship under Title I of ERISA and/or the Code is clear to the advisor, as well as the client, at the time of the recommended investment transaction. This requirement reflects the DOL’s view that parties wishing to take advantage of the broad prohibited transaction relief in the new exemption should make a conscious up-front determination that they are acting as fiduciaries; tell their client’s that they are rendering advice as fiduciaries; and, based on their decision to act as fiduciaries, implement and follow the exemption’s conditions.

DUE DILIGENCE AND DOCUMENTATION

There are a number of specific considerations to be reviewed and compared before executing any action. Considerations include the following:

• The range of investment options between the existing plan and proposed rollover account, and which is in the client's best interest.
• A comparison of the fees and expenses associated with the existing plan and the proposed rollover account.
• What, if any, tax implications exist for the individual client should they choose to accept rolling over their ERISA plan assets into an IRA?
• Are there services that the client would receive from the existing plan that would benefit them that they would not receive in a new account?
• Is the client's age a factor? Are they planning to retire early or do they plan to work past the age where Required Minimum Distributions (RMD’s) will come into play?
• ERISA plans typically have unlimited protection from creditors, whereas IRA assets are only protected in bankruptcy proceedings. Is this a concern for the client?

Advisors are expected to make diligent and prudent efforts to obtain information about the existing employee benefit plan and the participant’s interest in it. The focus should not be solely based on the client’s current holdings, but instead should consider the overall options available in the plan. Consideration of factors like the long-term impact of any increased costs, why the rollover is appropriate (notwithstanding any additional costs), and the impact of any economic investment features that exist are critical components in determining suitability with each individual client. In the event that a client won’t provide the information, even after an explanation of its significance, and the information is not otherwise readily available, the institution and professional should make a reasonable estimation of expenses, asset values, risk, and returns based on publicly available information. Documentation should be maintained whenever assumptions are being used and their limitations.

WRITTEN DISCLOSURES

Prior to engaging in a transaction under the exemption, the Advisor must provide its clients a written description of the Advisor’s material conflicts of interest arising out of the services it provides and any recommended investment transaction. These conflicts must include those associated with proprietary products, payment from third parties, and compensation arrangements for both the advisor and its investment advisor representatives. Disclosures with material omissions will be considered inaccurate and will not satisfy the exemption. It should be further noted that the disclosure cannot be a “check-the-box” activity. As it pertains to the written disclosure of the recommendation, advisors should consider, discuss, and document the alternatives to executing a rollover. Those alternatives include leaving the money in the existing plan, rolling the money into a new employer-sponsored plan, or withdrawing money from the ERISA plan completely.

Disclosures with material omissions will be considered inaccurate and will not satisfy the exemption. It should be further noted that the disclosure cannot be a “check-the-box” activity. As it pertains to the written disclosure of the recommendation, advisors should consider, discuss, and document the alternatives to executing a rollover. Those alternatives include leaving the money in the existing plan, rolling the money into a new employer-sponsored plan, or withdrawing money from the ERISA plan completely.

IMPARTIAL CONDUCT STANDARDS

The cornerstone of the exemption is the requirement that advisors adopt and adhere to the Impartial Conduct Standards. The essence of these standards should come as no surprise, as they speak directly to the duty of care and loyalty that should be paid to all clients and transactions at all times as an advisor. Those standards are outlined below:

• Investment advice must be in the best interest of the client and must not place any other interests ahead of that interest.
• Compensation paid for such advice must be reasonable.
• Statements made with respect to the transaction must not be materially misleading.

ANNUAL REVIEW

The Advisor’s annual review should be designed to assist the firm in detecting and preventing violations of, and archiving compliance with, the impartial conduct standards and their policies and procedures. The results of the review must be reduced to a written report that is submitted to one of the institution's senior executive officers. The officer must make certain certifications related to their review of the report. The report, certification, and supporting data must be retained for six years and provided to the DOL within 10 business days of a request.

How will the DOL Oversee Compliance with PTE 2020-02?

To the extent that advisors experience violations of the exemption, PTE 2020-02 contains a self-correction procedure for violations of the conditions under the exemption. To self-correct, an advisor must:

1. Determine that the violation did not result in investment loss, or it must make the client whole for any such loss;
2. Correct the violation and notify the DOL within thirty (30) days of correction;
3. Complete the correction no later than ninety days after the advisor learned of (or reasonably should have learned of) the violation; and
4. Notify the person(s) responsible for conducting the retrospective review during the applicable review cycle so the correction can be included in the report.

NEXT STEPS: We are currently building various tools embedded within AdvisorCloud360® to assist with these requirements. In the meantime, we strongly encourage advisors to adopt policies and procedures to help with their due diligence and documentation efforts, as well as ongoing disclosure requirements.

If you’d like to receive more information on the new DOL rule, please reach out to AdvisorAssist at info@advisorassist.com.

RESOURCES:

DOL Final Rule

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5th Circuit Court Vacates DOL Rule

On March 15, 2018, the Fifth Circuit Court of Appeals ruled via split decision to “vacate” the well-publicized DOL fiduciary rule. This decision does not come as much surprise. It has long been rumored that the DOL rule was destined for failure after President Trump ordered a formal review in March 2017. Speculation by industry watchers is that the next step for the DOL rule could be the U.S. Supreme Court.

While this decision is limited in scope, it creates an opportunity for the Securities and Exchange Commission (“SEC”) to take the lead on a uniform fiduciary standard for both RIAs and broker-dealers. The SEC is the more natural choice for marrying the fiduciary standard across both RIAs and broker-dealers.

We expect the SEC to prioritize a new fiduciary rule proposal. Although the timing is uncertain, we expect to learn more prior to 2019.

What does this mean for you?

With or without the DOL, you still have a fiduciary responsibility to act in the best interest of your clients. You may not have to go to the extent of best interest contracts. However, “Know Your Clients” requirements are never going away and the regulators will always want documentation of how you operate as a fiduciary. It may still make sense to adopt some of the documentation standards of the DOL’s “Level Fee Fiduciary” when making rollover recommendations.

Contributors:

Brian Young
Brendan Furey

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DOL Rule: Level Fee Fiduciary

Even if you are a fee only RIA, the DOL still applies to you!

Unless you have been living under a rock, you are already aware that June 9, 2017 marked the official compliance effective date of the DOL Rule. Although advisors have until January 1, 2018 to be in full compliance of the new rule, it is recommended that you get started today.

I have been asked multiple times about the applicability of the DOL rule to a fee only RIA. Just because you do not collect commissions via mutual fund or insurance sales does not mean that you are safe from the DOL rule. Yes, as a fee only RIA, you are in good shape because you are already held to a fiduciary standard under the Advisers Act. However, the DOL rule expands the definition of a “fiduciary” as it relates to retirement plans and accounts. The most common scenario is when an Advisor recommends a retirement account rollover. In a rollover situation, there are additional disclosures and documentation practices that Advisors will need to implement to comply with the DOL rule. As it relates to fee based RIAs, I will focus my conversation on the level fee fiduciary exemption.

So who is a level fee fiduciary? Per the DOL rule, it is an advisor that provides services based on an AUM or fixed fee that does not vary based on the recommended investments. I think most people would agree that a fee based account versus a commission based account better aligns the interests between the Advisor and client. However, the DOL rule seeks to cover the conflict of interest that potentially lies in the rollover of a retirement account. More specifically, the scenario where the Advisor is able to generate revenue that they would not receive if not for the account rollover. Here are a couple scenarios to consider:

Scenario 1:

Your client has an ERISA retirement plan account through their employer, XYZ Corp. They are making a career change and starting a new job with ABC Corp. They reached out to you to help decide what they should do with their XYZ Corp sponsored retirement account. You recommend that the client should rollover their retirement plan account into an IRA account.

Scenario 2:

Your client has an IRA account that is held in a commission based account. You recommend that they rollover this account into a fee based account.

In these scenarios, here are a few best practices to make sure that you adhere to the level fee fiduciary exemption. You will need to:

• Acknowledge your fiduciary status through a written notice to your client.
• Abide by the impartial conduct standards:
• Act in the best interest of the client.
• Charge reasonable compensation.
• Do not make misleading statements.

In both account rollover scenarios, it is important that you also document how you are adhering to the impartial conduct standards. Here are few questions that you should answer and keep saved in your client files:

• Why was the account rollover recommendation in the best interest of the client?
• What other investment options are available to the client besides an account rollover?
• What are the fees and expenses in the previous account versus the fee based account?
• What are the level of services or investments made available under the previous account versus the fee based account?

If you have any additional questions, please feel free to post a comment below or send an email to info@advisorassist.com. We will be posting more content in regards to the DOL Rule, so please subscribe to our blog!

Contributors:
Brian Young

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Department of Labor Fiduciary Rule: Webinar Q&A

Last week, Advisors4Advisors (A4A) hosted a webinar on the DOL Fiduciary Rule change presented by members of the AdvisorAssist team. You must be a paying A4A member ($60 annually) to attend webinars, view replays, and receive CPA, CFP or IMCA CE credit. Click here for information on joining A4A, and Click here to access the webinar replay.

The following questions were raised after the webiar about the new DOL Fiduciary Rule. We cover the DOL Fiduciary Rule in more detail in a previous post

1. In RIA with Rollover, since AUM increases, but fees decrease or services increase then are you a conflict? Trusted advisor is increasing income, but client getting something for it.

A: This question seems to be asking when an Advisor is managing a client’s retirement plan assets and recommends a rollover to another vehicle, such as an IRA, since the Advisor’s assets under management (AUM) will increase but overall fees paid by the client will decrease, or services received by the client increase, then are you in a conflict? The Advisor’s compensation is increasing but the client getting something for it.

The recommendation of a rollover creates a potential for a conflict of interest. Therefore, the Advisor making the recommendation should document with the client why the rollover is in the client’s best interest. The fact that overall fees paid by the client will decrease, or services received by the client will increase with the rollover are good reason why the rollover is in the client’s best interest and therefore, should documented in the client’s profile and if it is not already in the client agreement, the client should receive notice that the Advisor is a fiduciary acting in the client’s best interest.

The definition goes on to explain what constitutes a “recommendation” and what may be excluded from that definition, such as providing certain services or information regarding the plan or IRA, such as marketing or making available to a plan fiduciary a platform or similar mechanism where the plan fiduciary may select or monitor investment alternatives; identifying investment alternatives that meet objective criteria specified by the plan fiduciary; providing objective financial data and comparisons with independent benchmarks to the plan fiduciary.

2. If an Advisor recommends that a client rollover from a 401(k), hence increasing the Advisor’s AUM and the client’s fees (regardless of investment), does not that create a conflict of interest?

A: Correct, the recommendation of a rollover creates a potential for a conflict of interest. Therefore the Advisor making the recommendation should document why the rollover is in the client’s best interest.

3. How do you get the expenses of the 401(k) that the employee was paying?

A: Clients should be able to produce documentation regarding the expenses that they are currently paying for their 401(k) plan. The Advisor will want to collect the current fee structure of their client’s 401(k) plan as a factor in making an informed recommendation about why any rollover from that plan is in the client’s best interest.

4. How do we get the expenses of the 401(k) to the client?

A: If you are trying to obtain information about a client’s 401(k) you should contact the plan sponsor. However, this question seems to be asking how do Advisors ensure they are not responsible for the expenses of a client’s 401(k).

Unless an Advisor is engaging clients in a “wrap fee” program, where the client pays a single advisory fee for the management and services of their account including custodian and brokerage fees, then the clients should be responsible for paying expenses related to the management of their account. Advisors should ensure that their client agreements and Form ADV Part 2A, Item 5(C) fully and accurately disclose which party is responsible for fees related to the account management.

Although an RIA may not be compensated by a commission or revenue sharing, Form ADV requires disclosure to clients regarding potential conflicts and compensation arrangements. Hybrid advisors receiving commission compensation will want to ensure they are satisfying the BICE. Therefore as a best practice we recommend that even firms without commission or revenue sharing fees should provide notice to retirement clients that they are providing their services in the client's best interest to uphold their fiduciary duty and review and update disclosures of any potential conflict of interest. This will ensure that you are availing your firm of the BICE and creating a presumption of compliance with the Rule.

5. If I'm an RIA and already a fiduciary, and serve ERISA qualified plans as a 3(21) advisor and 3(38) manager capacity, and already have level fees fully disclosed and transparent within Advisory Agreements. (408b2 compliant), how am I really impacted by the DOL Rule? The only thing I've read is needing to document rollovers if I will get compensated for the rollover into an IRA (versus keeping funds in a 401k Plan, for instance) - which I already do to some degree.

A: Correct. The ongoing receipt of a Level Fee such as a fixed percentage of the value of a customer’s assets under management, where such values are determined by readily available independent sources or independent valuations, typically would not raise prohibited transaction concerns for the Advisor.

Under these circumstances, the compensation amount depends solely on the value of the investments in a client account, and ordinarily the interests of the Advisor in making prudent investment recommendations, which could have an effect on compensation received, are aligned with the Retirement Investor’s interests in increasing and protecting account investments. However, there is a conflict of interest when an Advisor recommends that a participant roll money out of a plan into a fee-based account that will generate ongoing fees for the Advisor that he would not otherwise receive, even if the fees going-forward do not vary with the assets recommended or invested.

As stated in question 1, for a level fee fiduciary to recommend a rollover the Advisor should document information supporting the recommendation in the client’s profile. Additionally, if it is not already in the client agreement, the client should receive notice that the Advisor is a fiduciary acting in the client’s best interest. It is our view that this written notice can also be communicated to the client via Form ADV.

6. Are there any best practices yet regarding the type of disclosure of the compensation arrangement and conflicts of interest (slide 13) - which I already disclose in our Firm's ADV?

A: The best practices regarding disclosure of compensation arrangement and conflicts of interest will evolve as we get closer to the full implementation date of this rule, January 1, 2018. That being said, if you are not a level fee Advisor and seeking to make use of the Best Interest Contract Exemption you will want compensation arrangements and conflicts of interest disclosed in a separate Best Interest Contract or as an addition to existing agreements along with the other requirements of the Best Interest Contract Exemption.

Also in the preamble to the final rule, the Department of Labor recommended the creation of web disclosure, which they state should contain: A schedule of typical account or contract fees and service charges, and a list of product manufacturers with whom arrangements have been made to provide payments to the Advisor, including whether the arrangements impact Advisor compensation. The DOL also suggests disclosure of the business model and the Material Conflicts of Interest, including payout grids and non-cash compensation and rewards.

7. Not sure if you covered this.... what about my existing clients that generate trails?

A: At this time we do not believe that trail compensation from commission transactions based on prior recommendations would be relevant to the DOL Rule change. If it is in the client’s best interest to transition those assets to another vehicle, or if a new recommendation that would involve a commission trail should arise, those would be relevant to your compliance for your fiduciary duty and the DOL fiduciary rule, respectively.

8a. [Is there a] Conflict if [a] Fee Only RIA is NOT advisor to the qualified plan but solicits retiree to rollover to IRA? (the value added is RIA gives advise (sic) whereas existing qualified plan does not give that advice.

A: The recommendation of a rollover of retirement plan assets creates a potential for a conflict of interest. Therefore, the Advisor making the recommendation should document why the rollover is in the client’s best interest. Advisors should also be aware if any of their solicitors are making such recommendations and ensure they have documentation to support the recommendation. The statement that the IRA has more options available to it for investment, and therefore more opportunity for different strategies by means of advisory services from the RIA, can be given by the Advisor that the rollover may be in the client’s best interest given the full profile of the client.

8b. Does DOL recognize that distinction?

A: Yes. The DOL Fiduciary Rule would consider you to be a Level Fee Advisor.

8c. Am I giving client that disclosure or just adding to my ADV and client file?

A: Form ADV should be completely and accurately disclosing fees charged by the Advisor in Item 5, and any other compensation received in Item 14. Advisors are typically required to deliver Form ADV to all new clients, and existing clients annually or upon a material change. The DOL Fiduciary Rule would require full disclosure of all fees related to a client’s retirement plan assets when certain recommendations are made, such as a rollover.

9. Are [these] rules [applying] to discount brokers or robo advisors?

A: The DOL Fiduciary Rule applies to anyone making the recommendations to clients in qualified plans for a fee. ERISA contains an exemption to prohibited transactions in section 408(b)(14) that covers robo-advisors and is available for robo-advice involving prohibited transactions if its conditions are satisfied. However, robo-advisors that are Level Fee Fiduciaries may rely on the Best Interest Contract Exemption with respect to investment advice to engage the robo-advice provider for advisory or investment management services for Plan or IRA assets, provided they comply with the conditions applicable to Level Fee Fiduciaries, as discussed in question 1 above.

10a. Doesn't the rule impose a significant burden on the fee only RIA to know the fees charged in the 401(k)? Sometimes is it very hard to find this out fully. Clients don't always provide this information and it is not always correct.

A: The new rule sets forth a requirement for certain information when making a recommendation to Retirement Investors. It requires that the Advisor, when providing investment advice to the Retirement Investor, that at the time of the recommendation, such advice reflects the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person 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, based on the investment objectives, risk tolerance, financial circumstances, and needs of the Retirement Investor. Therefore, we would recommend performing all the necessary due diligence, whether with the client or directly with the plan sponsor of the client’s 401(k) in order to substantiate the recommendation(s) made, including current fee structure on 401(k) plans affected by the advice.

10b. Since we have no access to the 401(k), how do you confirm the information?

A: As stated in question 10a above, due diligence requirements should include gathering information from all sources available including contacting the sponsor of the plan, if needed.

11a. What do you mean by "level fee" advisor?

A: Level fee advisors are those that meet the definition of a level fee fiduciary by receiving the same compensation regardless of the particular investments the client makes, whether based on a fixed percentage of assets under management or a fixed dollar fee.

The full definition of a Level Fee Fiduciary is located in Section VIII(h) of the Best Interest Contract Exemption Final Rule

11b. Are you talking about an AUM %? or something else?

A: An Advisor whose compensation is based on the client’s assets under management would be an example of a Level Fee Fiduciary for the purposes of the DOL Fiduciary Rule.

12. Does the ADV Part II provide adequate disclosure for fee only RIAs?

A: It is our view that this written disclosure can also be communicated to the client via Form ADV.

13. Would an RIA be considered a level fee fiduciary if they charge differently for equities/bonds/cash?

A: Based on the definition of Level Fee Fiduciary above that does not sound like it would meet the requirements for the purposes of the DOL Fiduciary Rule since the Advisor would receive different compensation depending on what investments were made.

Contributors:
Brendan Furey
Michael Conlon

Analyzing the Department of Labor Fiduciary Rule

The revised Department of Labor (DOL) fiduciary rule (Rule) was published in its final form in the Federal Register and can be accessed by clicking this link. Although effective starting June 7th, 2016 the DOL has granted time for affected service providers of retirement plans to adjust to fiduciary status and partial compliance is not required until April 10, 2017 with full compliance required by January 1, 2018.

The focus here is determining if fiduciary status applies to your firm based on the advice provided to retirement plans or participants, what exemptions may apply, and what steps must be taken to maintain compliance.

Definition of Fiduciary

Under the Rule a fiduciary will now include a person providing investment advice regarding money or property within the plan for a fee or other compensation, directly or indirectly, to a plan, plan participant or beneficiary, IRA or IRA owner. Investment advice relevant to this definition include the following:

1. A recommendation as to the advisability of acquiring, holding, disposing of, or exchanging, securities or other investment property, or a recommendation as to how securities or other investment property should be invested after the securities or other investment property are rolled over, transferred, or distributed from the plan or IRA;
2. A recommendation as to the management of securities or other investment property, including, among other things, recommendations on investment policies or strategies, portfolio composition, selection of other persons to provide investment advice or investment management services, selection of investment account arrangements (e.g., brokerage versus advisory); or recommendations with respect to rollovers, transfers, or distributions from a plan or IRA, including whether, in what amount, in what form, and to what destination such a rollover, transfer, or distribution should be made; and
3. The investment advice is made, directly or indirectly (through an affiliate), by a person who:
1. Represents or acknowledges that it is acting as a fiduciary within the meaning of the ERISA or the IRS Code;
2. Renders the advice pursuant to a written or verbal agreement, arrangement, or understanding that the advice is based on the particular needs of the advice recipient; or
3. Directs the advice to a specific advice recipient or recipients regarding the advisability of a particular investment or management decision with respect to securities or other investment property of the plan or IRA.

The definition goes on to explain what constitutes a “recommendation” and what may be excluded from that definition, such as providing certain services or information regarding the plan or IRA, such as marketing or making available to a plan fiduciary a platform or similar mechanism where the plan fiduciary may select or monitor investment alternatives; identifying investment alternatives that meet objective criteria specified by the plan fiduciary; providing objective financial data and comparisons with independent benchmarks to the plan fiduciary.

The definition also clarifies that an advisor is not a fiduciary when providing advice to an independent person who is a fiduciary of a plan or IRA, if that fiduciary is a bank, insurance carrier, registered investment adviser, broker-dealer, or other person that holds or has assets under management of at least $50 million. This means the old definition has been expanded to focus on advice given to IRA owners and people rolling over their employer sponsored plan (e.g., 401(k) account) into an IRA. Finally, education and general marketing materials that a reasonable person would not view as investment recommendations are not included in the definition of retirement investment advice, so advisors may continue to provide general materials on retirement saving without triggering fiduciary duties.

As a fiduciary, an advisor must adhere to a “best interest” standard for a client, rather than a “suitability” standard for an investment product. Therefore, an advisor cannot receive fees that could be seen as creating conflicts of interest (i.e. commission or revenue-sharing), unless a qualified exemption applies.

Best Interest Contract Exemption (BICE) and Impartial Conduct Standards

This exemption, published at this link, provides relief for compensation, such as commissions and revenue sharing, that an advisor and the advisor’s employing firm might receive in connection with investment advice to retail retirement investors. The BICE requires financial institutions and advisors to acknowledge fiduciary status for itself and its advisors, adhere to basic standards of impartial conduct by giving prudent advice in the client’s best interest, avoid misleading statements, and receive only reasonable compensation. Additionally, financial institutions must adopt policies and procedures reasonably designed to mitigate any harmful impact of conflicts of interest, disclose basic information about their conflicts of interest and the cost of their advice. Level Fee fiduciaries are subject to more streamlined conditions.

Principal Transactions Exemption

The other main exemption from the Rule is the Principal Transactions Exemption, published at this link, which permits advisors to sell or purchase certain debt securities and other investments out of their own inventories to or from plans and IRA owners. The exemption applies even though this transaction results in payment to the advisor. However, similar to the BIC exemption, the advisor must adhere to Impartial Conduct Standards and disclose to the client any conflicts of interest in order to make use of the exemption.

How should a Chief Compliance Officer respond to the Rule?

In all cases, the advisor will want to retain documentation of compliance with this new rule, including contracts, policies, procedures, and disclosures, to support your Books & Record requirements. However, there are no additional record retention requirements for detailed data on inflows, outflows, holdings, and returns for retirement plan or IRA clients.

Chief Compliance Officers should review the information in their Form ADV Part 2A and client agreements to determine whether or not they are acting as a fiduciary based on the recommendations provided to clients regarding retirement plans, participants, beneficiaries or IRAs, and ensuring that their client agreements and ADV contains all disclosures required by the Rule regarding conflicts of interest and compensation arrangements, including a statement as to whether or not they are a fiduciary.

Although an RIA may not be compensated by a commission or revenue sharing, Form ADV requires disclosure to clients regarding potential conflicts and compensation arrangements. Hybrid advisors receiving commission compensation will want to ensure they are satisfying the BICE. Therefore as a best practice we recommend that even firms without commission or revenue sharing fees should provide notice to retirement clients that they are providing their services in the client's best interest to uphold their fiduciary duty and review and update disclosures of any potential conflict of interest. This will ensure that you are availing your firm of the BICE and creating a presumption of compliance with the Rule.

Contributors:
Brendan Furey
Michael Conlon

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Department of Labor's Fiduciary Rule Change

The long-anticipated “fiduciary rule” update from the Department of Labor has been issued. AdvisorAssist is reviewing the contents of the rule change to determine what compliance impact it would have to our clients, if any.
As the effective date for the rule’s applicability is no earlier than April 2017 we are taking the time to thoroughly and completely analyze the rule change to ensure further guidance is complete and accurate.
The rule change was published on the Federal Register detailing these final rules from the Department of Labor is available here. &nbsp&nbsp&nbspA summary of the rule change starts on page 8.
Stay tuned for additional information as we get closer to April 2017 and January 1, 2018 implementation dates.
Contributors:
Brendan Furey
Michael Conlon

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