DOL fiduciary rule: Great for lawyers, but what about advisors?

NASHVILLE – As he opened the NAPA 401(k) Summit Sunday afternoon, NAPA executive director and American Retirement Association CEO Brian Graff started with a then-and-now comparison: "At the first 401(k) Summit, I said 'Now we have to recognize that the 401(k) is America's retirement plan.'"

Now, at the 15th annual 401(k) Summit, Graff said, "We have to recognize that the Department of Labor is America's sheriff.'"

His state-of-the-industry address to NAPA members centered on the one thing that has compelled the attention of the retirement industry for over five years now: the DOL fiduciary rule.

Graff outlined key changes between last year's proposed DOL fiduciary rule and the recently finalized version for the over 1,700-person crowd of plan advisors, sponsors, recordkeepers, and other industry types.

But first, there was the fiduciary rule as baby metaphor.

"This thing has been like waiting for a baby to be born. Then when it's born, you're up all night, reading and reading, a thousand pages, twice. And like a baby, it keeps you up at night. Even though I've read through 2000 pages, I think about it."

He went on to call up a situation most parents of baby boys have encountered. "You change the baby's diaper, and what does your son do to you? He pees you in the face. And when I look at this reg every once in a while, I feel like yeah, I'm getting peed in the face. But you can't walk away from it. It's your baby."

"I know some people want to put the baby up for adoption. Those are the folks who will file a lawsuit. It's going to happen. But we are operating under the assumption that we're keeping the baby and we'll have to deal with it."

One thing that people might agree on, Graff said, is that "The fiduciary rule will be great for lawyers."

But the big question for NAPA members is, "What does it mean for us?"

He mentioned several areas of the rule that are of interest to NAPA, where the latest version eased fears raised by the earlier version:

Rollovers: This was "a huge issue for us for advisors." The DOL however, did what Graff said NAPA had requested "after many meetings" and at least "clarified what constitutes advice in rollover conversations."
The BIC Exemption: The DOL added the Level Fee Fiduciary Streamlined Exemption "or as some like to call it BIC Lite."

A basic question firms will have to consider is this: "Is it BIC or is it BIC lite? There is no third option."

"With BIC — you have more liability, more cost of compliance, more flexibility in how you do business. With BIC lite, you have less liability, less compliance cost, much less flexibility.

Another issue that was critical, and important to NAPA, was the issue of plan education. "We were the only org that focused on this issue," Graff said.

The rule originally said if you name an individual investment fund in an education meeting, you are in essence a fiduciary, just by naming funds. The result, Graff said, is people will "stop providing the education that connects the dots between what the plan provides and what the employee participant needs."

But the DOL changed that part of the rule. "Now, you can designate particular investments," he said. "If you are the plan fiduciary you can provide education to participants and specify investments. If you want to give examples of specific portfolios, you can but you have to give examples of all of them. Your recordkeeping partner can also provide education, even if it includes their investments, if the investment committee blesses their model."

Another area of importance was small plans. "How could you not allow for an exemption for small plans, we asked. They changed it," Graff said.

Another area was RFPs. The DOL added the "Hire me" exception — which, Graff said, means that as long as you are marketing your own services, you can.

He noted the DOL's applicability date of April 10, 2017. The NAPA 2017 summit is March 19-21, 2017, in Las Vegas, Graff noted — rather conveniently timed: "Our theme will be 'What happens in Vegas, never happens again, unless you use the full BIC, then it's flexible,'" he said.

He noted the association's PAC. The DOL fiduciary rule "is going to be a living document," he said. "And the way the DOL deals with these questions is very deliberative. They're not going to show up at a conference and give answers off the top of their head. They take the questions, deliberate on them, then issue FAQs. They will issue, I expect, hundreds of FAQs. Not just once, but multiple times."

"The lobbying on this rule is going to be constant. If there are key issues where we think the rule is this and they say 'no, no, no,' we're going to use the PAC to influence this.'

To that end, NAPA has created a website called askdol.org. Members "can ask a question — anyone, even law firms — we'll gather questions, go to the department, discuss what we think the answers ought to be, they'll nod their heads and go back and think about it. It allows you to ask questions you're concerned about."

And, perhaps craft an interpretation of the fiduciary rule that doesn't end up with advisors all wet.

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