DOL Announces Hearing to Discuss PTE Proposal for Fiduciary Rule

The DOL is proposing a new prohibited transaction class exemption for investment advice fiduciaries.

The Department of Labor (DOL)’s Employee Benefits Security Administration (EBSA) will hold a public hearing to consider issues related to adopting a proposed prohibited transaction exemption (PTE) as part of its proposed rule on improving investment advice for workers and retirees.

The proposed rule would create a new exemption for investment advice fiduciaries as defined and policed under the Employee Retirement Income Security Act (ERISA). The proposed exemption offers a new prohibited transaction class exemption for investment advice fiduciaries and is based on an existing temporary policy adopted after the 5th Circuit Court of Appeals vacated the DOL’s previous 2016 fiduciary rule package.

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If finalized as proposed, the exemption would allow investment advice fiduciaries to give more choices for retirement clients using so-called “impartial conduct standards.” According to the DOL leadership, these impartial conduct standards rise to the level of “a best interest standard.” This is to say that they require reasonable compensation and that financial professionals make no materially misleading statements.

As part of this proposal, the department is also taking the ministerial action of amending the Code of Federal Regulations to implement the 5th Circuit’s order. As the DOL explains, the court’s order had the effect of reinstating the department’s 1975 regulation defining who is an investment advice fiduciary under ERISA and the Internal Revenue Code (IRC), commonly known as the “five-part test.” The court’s order also had the effect of reinstating the department’s Interpretive Bulletin 96-1 regarding participant investment education.

The end of the comment period for the proposed rule revealed that some parties argue the fiduciary proposal is being rushed, while others broadly support the DOL’s aim to align its regulations with the Securities and Exchange Commission (SEC).

The hearing will be held on September 3 and (if necessary) September 4, beginning at 9 a.m. EDT. Due to the COVID-19 pandemic, the hearing will be held virtually.

The DOL said testimony will be limited to individuals or parties who submitted a comment or hearing request on the proposed exemption before the close of the comment period. Requests to testify at the hearing on the proposed exemption should be submitted to the DOL on or before August 28. Text of the Notice of Hearing, which will be published in the Federal Register on August 25, is here.

Massive Teacher Retirements Could Hurt Pensions

It would increase public pension plans’ required contributions and result in lower contributions by members.

At a recent webinar hosted by the National Institute on Retirement Security (NIRS), “Will COVID-19 Trigger Teacher Retirements?,” the overwhelming conclusion was that the pandemic could do just that—which would put enormous pressure on school districts’ pension plans.

As Dan Doonan, executive director of NIRS, put it, “Learning about the issue of providing a good education without causing physical harm throughout a pandemic is certainly challenging. We are now over 5 millions cases throughout the U.S., which continues to represent about a quarter of the cases worldwide, and it only took 17 days to reach that mark after we crossed the 4 million mark—so the virus is spreading and it is, tragically, claiming more than 1,000 lives every day right now on a fairly consistent basis.”

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A big problem exacerbating the potential of teachers retiring or exiting the workforce en masse, Doonan said, is that in 2009-10, there were 615,842 students enrolled in programs to become teachers. In 2017-18, there were only 312,162 enrolled in such programs, according to the U.S. Department of Education.

“The teacher pipeline has lost 47% of what we had in 2009 and 2010,” he said.

However, Rocky Joyner, senior vice president and actuary, Segal, said what has been a redeeming factor in helping school systems have an adequate number of teachers is the fact that many of them serve long careers, well into their late 60s. “Almost 20% of teachers already have 20 years or more of service,” he said. “Sixty-five percent of teachers are expected to serve 30 years or more, and 68% will serve until their retirement eligibility. So, even though the educational pipeline has been drying up, delayed retirement has helped supply teachers for the classrooms.”

Joyner said he hoped that would continue to offset any movement among teachers to begin retiring early due to fears of contracting COVID-19.

However, should teachers leave the workforce, he said, this will cause “increased benefit payouts, potentially creating cash flow issues. This will increase pension plans’ required contributions, all while teacher shortages” will result in lower contributions by members.

Paul Angelo, senior vice president and actuary at Segal, echoed Joyner’s points, saying, “Early retirements, as a general rule, increase the liability, and if those teachers are not replaced, since we have contributions collected as a percentage of payroll, we will have lower contributions. This will result in an immediate increase in cost to employers, whether they fund their pensions on an actuarial basis or a fixed-rate basis. In both cases, talk to your actuary about doing some kind of modeling, keeping in mind that post-employment benefits, such as medical insurance, will also increase.”

David Lamoureux, California State Teachers’ Retirement System (CalSTRS) deputy system actuary, said conducting modeling risk is extremely important for teacher retirement systems. This should take into account investment, longevity and membership risk, he said. While CalSTRS has 100,000 teachers eligible to retire, currently, only 12,000 to 13,000 of them retire in any given year. Lamoureux said he is worried that number could spike due to teachers’ fears over the virus.

“If we are going to see more retirements or layoffs due to COVID-19, it is very important to model the impact of membership,” he said. “In every recession, we have seen lower than expected investments returns as well as declines in the number of teachers.”

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