美国.S. Department of Labor (DOL) recently asserted against a nonprofit health plan sponsor for breaches of Employee Retirement Income Security Act (ERISA) fiduciary duties and prohibited transactions for allegedly allowing the plan to pay excessive fees to its service providers.[1]
尽管劳工部在联邦地区法院败诉了, this case reminds health plan sponsors that their ERISA fiduciary duties — including selecting and monitoring service providers and their fees — should be viewed essentially the same way as their retirement plan fiduciary duties. Even if employers outsource health and welfare plan administration (which is very common), this case confirms that employers still have a duty to monitor co-fiduciaries and plan service providers — and to make sure that the plans do not pay excessive fees.
还读: 萨塞尔多特v. N.Y. 大学:规划受托人的警世故事
洞察力
Health care plan sponsors of all sizes should periodically evaluate their procedures to ensure they can document prudence in exercising their fiduciary duties in plan operations.
雇主指南
The court’s meticulous dissection of DOL’s claims gives health and welfare plan sponsors a “procedural prudence” roadmap to follow in assessing whether their plan operation may trigger potential ERISA liability exposure. Investing in a robust fiduciary process often yields victory (or at least better results) for employers, as shown in the recent wave of 401(k) and private university 403(b) retirement plan excessive fee lawsuits.
在这种情况下, the employer proved that it did not simply delegate authority and turn a blind eye on the plan. 相反，雇主表明其监督程序包括:
Regular review of third-party administrator (TPA) and insurance broker’s services and fees, 包括其有效性和范围.
- 贸易促进权的年度会议, 经纪人及个人受托人, 包括审查他们的年度报告.
- 由外部会计师事务所执行的年度计划审计.
- 外部法律顾问对服务提供商合同的审查.
- 定期监督该计划的行政和索赔程序.
- Informal market information collection on service provider options and alternatives by talking to other service providers at conferences and gauging their fees, 即使是正式的, 没有进行书面征求建议书.
没有RFP，没有问题
The court specifically rejected DOL’s position that ERISA requires RFPs to ensure that the plan pays the lowest cost. The court said that ERISA does not require fiduciaries to “scour the market” to find the cheapest option for participants. 更确切地说，合理就是所需要的一切. The court found that the employer was prudent in relying on its advisors and informal external sources because the employer’s demographics and industry limited the universe of potential service providers for this particular plan to only two possible TPAs. Moreover, the plan had already used one of those two TPAs before switching to the other one.
The employer primarily hires individuals with intellectual developmental disabilities who provide janitorial services to federal, 州和地方政府机构. Many of those government contracts are subject to the federal Service Contract Act (SCA). The SCA mandates that employers must pay employees performing services on that government contract “prevailing wages” and allows employers to provide a certain amount of health or other fringe benefits in lieu of cash. The employer contributed the required SCA prevailing wage amount to a self-funded health and welfare trust, 这与止损保险相协调. 许多政府合同还涉及与工会打交道. 许多计划参与者也有资格获得医疗补助.
相应的, TPA需要熟悉SCA, 工会和医疗补助规定, 了解自筹资金计划和止损保险, and be equipped to handle the special challenges of dealing with a plan where 75 percent of the participants are disabled (1,500 / 1,共有900名计划参与者残疾). Informal market research showed that very few TPAs could service the plan’s unique needs, 所以做传统的RFP对这个计划没有实际意义. Even DOL’s expert witness conceded that if the employer had conducted a formal RFP, the incumbent TPA may have been selected as the winner due to its unique ability to handle the plan’s needs.
即使没有做正式的RFP, the employer considered six other TPAs who lacked experience in one or more of the plan’s special needs and concluded that only one of the six was a feasible candidate. 雇主决定继续使用他们现有的贸易促进权, since the disruption to plan participants of a vendor switch did not seem to be in the best interests of plan participants. The court looked favorably at the employer’s “best value” and “best fit for participants” approach, 即使这不是最低的成本.
Employer-Negotiated费用
An important factor in assessing the prudence of the employer’s process was that the employer periodically negotiated the plan’s service fees. Such negotiations lead to decreased fees for 2006 and 2007, which held steady in 2008. In 2009, the TPA and broker agreed not to increase fees for five years (through 2014) and in 2011, the fee freeze was extended to 2019 — such that their fees were unchanged for 10 years (from 2009 to 2019).
Even Small Employers And Nonprofits Can Incur Significant Litigation Expense
This case shows that DOL is willing to take employers (even smaller employers and nonprofit employers) to court over allegations of health and welfare plan excessive fees. 该案花了四年时间才做出这一裁决. 法庭审判持续了11天, featured 11 witnesses (including four experts) and more than 140 exhibits were filed. 尽管雇主打赢了官司, 通常情况下，每一方都要承担自己的诉讼费用, 这是很重要的.
If you have questions about this article or other retirement plan issues, 雷亚退休计划服务团队随时为您提供帮助. 请与我们联络，了解退休计划指引.
By 保罗·麦克尤恩，注册会计师，MTax, AIFA (新费城办事处)
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[1]李晓明. 哥伦比亚奇姆斯地区公司.