Tag Archives: IRA

DOL Fiduciary Rule: What It Means

In April 2016, the U.S. Department of Labor (DOL) released a regulatory package that established a new standard for fiduciary investment advice. Under the Fiduciary Rule, investment recommendation given to an employee benefit plan or an individual retirement account (IRA) is considered fiduciary investment advice and therefore must be in the “best interest” of the investor.

As a result, financial advisers who provide investment advice under the new standard now face limits on receiving commission-based compensation. Considering that 50% of U.S. financial assets is held in retirement accounts, the impact of the rule is significantly affecting insurers, broker dealers and investment managers.

The DOL has long been concerned that people rolling over assets from an employer-sponsored pension plan to an IRA are not being well-advised and, as a result, are investing in products that are not most suitable for their needs or are unnecessarily expensive. Central to the DOL concern is what it perceives to be a lack of transparency around the standard under which an adviser is providing advice and how he/she is compensated. This is not surprising because advisers operate under multiple standards, with a majority of asset flows falling under a “suitability” rather than fiduciary standard.

To address these concerns, the DOL expanded the definition of the term “investment advice” under ERISA, thereby imposing fiduciary status under both ERISA and the Internal Revenue Code on firms and advisers who provide investment advice under this expanded standard. A fiduciary is subject to the duties of prudence and loyalty and is prohibited from acting for his/her own interests or in a manner adverse to those of the ERISA plan or IRA. Accordingly, fiduciary status will have a fundamental impact on adviser compensation, as advisers who are fiduciaries may not use their authority to affect or increase their own compensation in connection with transactions involving an ERISA plan or IRA.

See also: Does DOL Ruling Require a Plan C?  

A catalyst of widespread organizational change

The DOL Rule is causing significant changes to the insurance industry that go well beyond compliance. While the industry needs to be prepared for the June 2017 applicability date, delayed from the original April date, the rule (even if delayed again) is also a catalyst for more meaningful change for both insurance manufacturers and distributors. In many cases, these changes have been contemplated for some time.

Compensation For starters, to mitigate any conflicts of interest resulting from distribution compensation, insurers should inventory current compensation and understand the impact of changing models to various distribution channels. The industry has been focusing on the issue of compensation for some time, anyway (e.g., moving to commissions for annuities), and the DOL rule provides further impetus for change. This change will not be easy, not least because the industry has a variety of products and uses different distribution models. To facilitate the transition to the new environment, carriers and distributors will need to understand the current hierarchy and how it might change.

  1. What is the distribution channel? Is the distributor a fiduciary? If so, what exception or exemption is the distributor using?
  2. How will changing the hierarchy affect agents’ livelihood?
  3. Do you risk losing agents to a carrier that will pay “conflicted” compensation?
  4. How do you factor in outside compensation (e.g., marketing fees and allowances, 12-B1 fees)?
  5. Depending on the product shelf, there will be different types of conflicts.
  6. Determine which transactions are prohibited. Determining “red” and “green” transactions should be relatively easy, but determining “yellow” ones will be much more difficult, especially because the rule is fairly ambiguous in this regard.
  7. Understand each other’s point of view. Distributors will create rules for types of compensation they will allow in their systems. Although they are currently uncertain about how they will have to adapt, carriers will have to change their compensation structures and communicate them to distributors.

Carriers and distributors will also need to safeguard against personal and organizational conflicts of interest.

  1. How do we pay our workforce and others?
  2. What is non-cash compensation?
  3. How do we provide incentives to agents to sell products and sell certain product classes over others?
  4. What is the difference between suitability and fiduciary?
  5. Inventory products and create a tool to identify potential conflicts. This will be a complex undertaking, but it will enable carriers to determine who and how much carriers pay and why, as well as if conflicts are permissible or need to be disclosed.
  6. Perform a compensation impact analysis; assess the performance of distribution compensation as it currently exists and what seems likely in the future. This should include an assessment of the future model’s effect on revenue, profitability, market position, channel attractiveness and overall company performance.
  7. As part of a change management strategy, ensure that there is regular, clear and informative communication – both internally and externally – on impending change.

Changes in agent training

Once the fiduciary rule is in effect, agents will need to be advisers first and sellers second. Even though many insurers, especially ones with captive sales forces, have already tightened sales practices in recent years, this does represent a genuine cultural shift and a novel convergence between compliance and sales and distribution. As a result, agents will need more training on their fiduciary role – all the way down to call center scripts – and, with rationalized product lines, most likely less product training than in the past.

Some carriers are experiencing impacts they didn’t foresee. Because of their increasing need to respond to fiduciaries’ requests, they’re having to adopt their distributors’ policies and procedures (including access data requests) and change their product portfolios, share classes and fee structures. If they don’t do this, they risk losing shelf space to insurers that do.

Product rationalization – The DOL rule is intensifying carriers’ and distributors’ focus on product rationalization. Smaller product portfolios and resulting streamlined distribution models will facilitate carrier understanding of its product suite and compliance risks when providing “best interest” advice to consumers, reduce training required for agents and help the industry reduce costs and increase scale. For example, with annuities:

  • There are many providers offering many similar products, and oftentimes riders emulate characteristics of other carriers’ products that companies can’t build themselves. The rule provides the industry further incentives to address the inherent inefficiency in this state of affairs.
  • When determining which products to sell, financial strength is going to be a key product rationalization consideration for distributors because compensation will be more normalized with fewer products. When product portfolios shrink, lower-rated carriers’ products aren’t going to receive shelf space, especially if distributors can’t clearly demonstrate their benefits to customers. As a result of portfolio rationalization and likely decreases in commissions, both carrier and distributor consolidation is likely to increase.
  • Moreover, this isn’t just a business decision but also a compliance one; distributors will have monitoring policy procedures to confirm adherence to this policy. Accordingly, distributors will have to establish a product selection methodology for each segment that accounts for appropriateness and applicability.

However, regardless of product, the challenges of rationalization also represent an opportunity for insurers to have more profitable product portfolios because they can focus on what they’re best at. They also should be able to create products that are less capital-intensive and, with a level fee/different fee structure, potentially profitable in earlier years. In addition, rationalization can help solve the challenge of a shrinking captive and independent agent workforce; fewer and more transparent products should reduce the need to replace many of the agents who are at or near retirement age. Because of the ability to inexpensively manage small accounts and automatically comply with fiduciary standards, as well as the potential to increase scale as needed, robo-advisers should become an even more popular way for insurers to sell products.

Data and technologyMoreover, the DOL rule makes capturing and maintaining new types of data a high priority for carriers and distributors. Agents will need to track, from the time contact is made with a client, how they acted in his/her best interest, and this record – which should be readily available to customers – will demonstrate that agents are being compliant (i.e., defensibility), as well as facilitate monitoring. Automating data capture, which should be especially effective via the robo-adviser channel, is the easiest way to ensure data is repeatable and transparent (again, defensible). This requires automating certain process to maintain compliance and be competitive in the future. Most of the industry has been aware of the need for technological changes, namely process automation, for some time – and many have been making them – but the DOL rule serves as yet another catalyst, especially for those companies that have been slow to act.

See also: Stepping Over Dollars to Pick Up Pennies  

Facilitating effective compliance

Distribution traditionally has had little to no involvement in regulatory compliance, and the DOL rule represents a new challenge for most organizations. We recommend that compliance should:

  1. Oversee distribution;
  2. Provide quarterly “health checks” to the board of directors in to review compliance on a quarterly basis;
  3. Maintain a traceability matrix that outlines key strategic and operational decisions related to rule requirements and thereby provides the company defensible documentation to minimize and mitigate losses.

Implications: Far beyond compliance

As a result:

  • The industry is likely to increase its already growing investments in and use of digital and online channels, including robo-advice.
  • Some insurers are divesting their broker-dealers; as a result, we expect to see consolidation among smaller insurance broker-dealers, independent broker-dealers and regional brokerages over the next three years.
  • The DOL’s move to increase transparency and eliminate conflicts of interest is helping drive convergence of regulation toward a broad fiduciary standard. Whether or not the SEC proposes to cover non-retirement accounts given the mandate for a federal uniform fiduciary standard under the Dodd-Frank Act, some fiduciary agents have already started to consider extending the DOL standard to an increased scope of accounts to avoid potentially awkward double standards for investors who hold both retirement and non-retirement accounts.

Regardless of political developments, we believe the rule’s core framework will remain intact. The industry has already made significant progress toward complying with it, and there is general recognition of the importance of removing conflicts of interest between financial advisers and retirement investors. As a result, financial advisers and firms should continue their work to meet the rule’s requirements.

Ready to Comply With Fiduciary Standard?

Recent actions by the U.S. Department of Labor (DOL) are causing insurance and other financial services brokers to rethink their business models and how they communicate with their customers. That’s because the DOL recently finalized a controversial new standard broadening the definition of who constitutes a “fiduciary” under the Employee Retirement Income Security Act (ERISA).

Essentially, the rule, with an applicability date of April 10, 2017, heightens the duty of financial advisers for 401(k) plans and IRAs who are considered “brokers,” defined as registered representatives of a broker dealer paid commissions by the investments they recommend. Before the new rule, brokers were held to a standard of suitability, which meant that, when a broker recommended that a client buy or sell a particular security, the broker must have a reasonable basis for believing that the recommendation is suitable for that client. That standard allowed brokers to recommend an investment product that paid them a higher commission as long as it was suitable for the client, even though it may not be the best choice. Under the new fiduciary standard, brokers must put their clients’ interests ahead of their own in recommending investments.

See also: Do Brokers, Agents Owe Fiduciary Duty?  

The new standard for brokers puts them on par with investment advisers registered with the Securities and Exchange Commission or individual states, who were already required to meet the fiduciary standard. The change presents a challenge to the business model of brokers, who typically get paid from commissions, unlike registered investment advisers, who are paid a percentage fee based on the amount of plan assets under management.

New challenges for broker customer communications

The challenges the new rule poses for brokers don’t end with compensation. The new duty will directly affect any information brokers provide to customers in print or digital form that might be deemed a “recommendation” under the rule. A fact sheet provided by the DOL describes a “recommendation” as follows:

“A ‘recommendation’ is a communication that, based on its content, context and presentation, would reasonably be viewed as a suggestion that the advice recipient engage in or refrain from taking a particular course of action. The more individually tailored the communication is to a specific advice recipient or recipients, the more likely the communication will be viewed as a recommendation.”

A holistic view of the customer communications ecosystem

In short, every broker customer communication will now need to be audited to determine whether it constitutes a recommendation and modified if it would violate the new standard. This could be an onerous task.

Customer communications management (CCM) processes will be essential for complying with this new rule. Adding personalization to communications is a huge advantage to the adviser, but it is now critical to have a process for reviewing these personalized communications to confirm that they conform to the new legal reality.

CCM becomes even more critical considering the efficiency and control that can be gained by centrally managing this content. Scattered, decentralized communications processes will make it far more likely that an adviser will send noncompliant content to a customer, exposing the company and the adviser to considerable risk.

Many insurance agencies and other brokers use legacy systems to generate their customer communications, which makes it costly and time-intensive to modify them to ensure compliance with the new rule. IT departments have the skills to make the needed changes, but not the time or full expertise to review and audit the updated customer communications. Insurance organizations should give careful consideration to the following to identify potential obstacles to compliance:

  • Determine where customer information is stored. If it resides in multiple departmental systems, there is greater risk that advisers will send noncompliant communications to customers unless these systems are coordinated.
  • Consider whether existing CCM processes and systems are flexible enough to incorporate compliance review for today’s wide range of communications channels, including mobile, email, web pages and social media.
  • Analyze how customer activities are supported by different channels in the organization. Channel communications may be intertwined from a customer’s perspective, but managed separately within the organization. Achieving compliance will require understanding how communications appear to the customer.
  • Ensure that compliance officers and other regulatory personnel are engaged early in communications creation and automate approval processes to speed time-to-market and create audit trails.

With the new DOL rule, brokers want to know what constitutes a recommendation, and they want to know how to effectively communicate with customers in a compliant way. Ideally, insurance organizations will find strategies that allow brokers the freedom to personalize their customer communications so that they can differentiate from the competition, while at the same time receive the timely guidance they need to avoid making an unintentional recommendation.

See also: Fiduciary Liability Insurance in the Nonprofit Sector – What You Need to Know  

Accomplishing this will require a careful look at the current customer communications ecosystem and taking the necessary steps to ensure that compliance review is integrated into workflows in the most effective, yet least intrusive, way.

An Open Letter to Federal Regulators

I welcome and applaud the federal government’s interest in the regulation of our nation’s insurance industries and markets. In response to the Federal Insurance Office’s request for comments on the “gaps” in state regulation, I appreciate this opportunity to present my views. Indeed, your request, Director McRaith, for comments upon such “gaps” seems to reveal what a keen, yet heretofore unpublicized, good sense of humor you must have.

To very briefly introduce myself, I am an economist, a CFA and a life insurance agent of more than 20 years who has worked with scores of life insurers. My views have been published by the Journal of Insurance Regulation, the American Council on Consumer Interests and various other industry trade publications. My positions are based on my extensive experiences with our nation’s profoundly problematic state-based insurance regulatory system, problems that those who have not been intimately involved with in the marketplace might find inconceivable.

State insurance regulators have never required the proper disclosure of cash value life insurance policies. Markets do not work properly without adequately informed consumers. While life insurance is, conceptually, a simple product, without the proper conceptual understanding of and the necessary relevant information, consumers cannot effectively search for good value. “The Life Insurance Buyer’s Guide,” published by regulators and mandatorily distributed with policies by insurers and their agents, is not just a little deficient—it is misleading, seriously incomplete and defective. And, it, in all of its various state editions, has been that way for almost 40 years.

Professor Joseph Belth has written about this national problem for more than 40 years. In 1979, the Federal Trade Commission issued a scathing report on the life insurance industry’s cash value products. Cash value policies are composed of insurance and savings components, and consumers need appropriate information about both. This specifically requires appropriate disclosure of these policies’ annual compounding rates on consumers’ savings element as well as annual costs regarding their insurance element. Both Professor Belth and I have separately developed very similar disclosure approaches. (More information about my approach and its comparative conceptual and marketplace tested-advantages is available on my website or upon request.)

The exceptional nature of this regulatory failure can be grasped by specifically contrasting the states’ regulatory track record on cash value policy disclosures with those of other financial regulators’ actions. Investment product disclosures have been mandated since the 1930s. Truth in Lending was enacted in 1969. And yet, while a consumer’s potential risks in making a poor life insurance purchase can arguably be shown to be greater than those in purchasing a poor investment or obtaining an unattractive loan, Truth in Insurance or Truth in Life Insurance legislation has never been promulgated by any state.

A second insightful perspective, and one with much more tangible consequences on its harmful impacts on consumers, can be grasped by reviewing a few basic facts about the current life insurance marketplace.

Three Facts

Fact No. 1: The life insurance marketplace is awash with misinformation; this should hardly be surprising. Life insurers actually run misleading advertisements and conduct training in deceptive sales practices. Evidence of such has been repeatedly submitted to state regulators. Moreover, given the industry’s commission-driven sales practices (commissions that can make those of mortgage brokers, now notorious for their own misrepresentations, look tiny), sales misconduct is pervasive. The harmful consequences of such agent misrepresentations are manifested every day, both directly and indirectly, in unwise purchases or other costly life insurance mistakes by American families. These misrepresentations go unrecognized because of consumers’ inadequate financial grasp of a product’s true conceptual framework, and these go unpunished because, as a past president of the national largest agent organization has written in widely quoted published articles, state laws prohibiting deceptive life insurance sales practices have virtually never been enforced.

Fact No. 2: Cash value life insurance policies that are sold to be lifelong products have extraordinary high lapse rates. Data shows that over an eight-year period, approximately 40% of all the cash value policies of many life insurers are discontinued. It is true there are many possible causes for consumers to discontinue coverage, but age-old evidence of consumer dissatisfaction has been a virtual five-alarm that state regulators have ignored for more than 40 years. Such lapses are especially financially painful to consumers, as the typically sold cash value policy has huge front-end sales loads (sales loads regarding which agents are trained to make misrepresentations).

It is very important that all readers fully understand that, contrary to pervasive misconceptions and misrepresentations, cash value policies do not avoid the increasing costs of annual mortality charges as a policyholder ages. The fundamental advantages of cash value life insurance products come from the product’s tax privileges. Tax privileges, however, are essentially a free, non-proprietary input. In a competitive marketplace, firms cannot charge consumers or extract value for a free, non-proprietary input. No one pays thousands of dollars in sales costs to set up an IRA. Cost disclosure will enable consumers to evaluate cash value policies by the policies’ price competitiveness and, as such, will drive the excessive sales loads out of cash value policies.

The heart of the battle over disclosure is that disclosure threatens to—and, in fact, will—undermine the industry’s traditional sales compensation practices. For example, over the past five years, Northwestern Mutual, the nation’s largest insurer, with $1.2 trillion of individual coverage in force, paid $4.5 billion in agent life insurance commissions and other agent compensation, while its mortality costs for its death claims were only $3.5 billion. (Northwestern paid more than $12 billion to policyholders surrendering their coverage during the same five years.)

Agents, naturally, do not like the idea of reduced compensation, but their arguments are not compelling. Insurers believe little life insurance would be sold without such agent compensation; that is, that the large and undisclosed agent compensation cash value policies typically provide is, 1) necessary to compensate agents for their sales efforts and yet, 2) could not be obtained from an informed consumer.

My position is that good disclosure on life insurance will drive the excessive and unjustified sales loads out of cash value policies, making them price competitive with pure-term policies, thereby enabling consumers to truly benefit from the product’s tax privileges. Also, product cost disclosure is an essential component of any fair business transaction (and, as all readers properly educated about life insurance know, a cash value policy’s premium and annual cost are different.)

Fact No. 3: It is undeniable that the sales approaches used today are not effective. Unbiased experts have, for decades, demonstrated that Americans have insufficient life insurance. In August 2010, the Wall Street Journal’s Leslie Scism reported that levels of coverage have plummeted to all-time lows. Contrast that with data showing consumers’ ever-increasing voluntary purchases of additional coverage via their employers’ group life insurance plans. Marketing research shows that fear making a mistake is the primary reason consumers avoid or postpone purchases and financial decisions. Inadequate disclosure on life insurance policies not only prevents consumers from being appropriately informed; it is also a main factor in their avoidance of the very product they so often need.

I predict publicity of appropriate disclosure will lead to: unprecedented sales growth, policyholder persistency, different levels of coverage, positive impacts on all other measurements of satisfaction regarding consumers’ future life insurance purchases and life insurance agents becoming trusted and esteemed professionals. Admittedly, appropriate disclosure could lead to litigation over agents’ and insurers’ prior misrepresentations.

As I think you may now understand, inadequate life insurance policy disclosure is a regulatory “gap” that is virtually the size and age of an intergalactic asteroid.

Other Gaps

As it is currently marketed, long-term care insurance (LTCI) constitutes another serious problem. While, theoretically, LTCI can make sense, the devil is in the details. Essentially, LTCI is a contingent deferred annuity, yet one where insurers retain an option to increase the premiums for entire “classes of insureds” and where consumers must confront post-purchase price risks without the information necessary to assess alternatives. Furthermore, consumers cannot transfer their coverage to a new insurer without forfeiting the value they’ve previously paid. Defective LTCI policies have let consumers be shot like fish in a barrel; in fact, the policies’ inherent unfairness makes loan sharks envious. Appropriate disclosure on LTCI would bring consumers drastically superior value and understanding.

Regulation of life insurance agent licensing is incredibly deficient. Agents should truly be financial doctors. However, states’ agent licensing requirements fail to make sure consumers are served by financially knowledgeable professionals; licensing exams are a joke. While there are many competent agents, it is quite possible that the overwhelming majority of agents—many of whom are new and inexperienced, as more than four out of five recruits fail in the commission-based environment within the first few years—do not possess the basic knowledge necessary to accurately assess a consumer’s needs or to properly evaluate different companies’ policies.

There is virtually no state regulation of fee-only advisers who charge for providing advice about life insurance industry products. Such individuals can cause harm to consumers in multiple ways: improperly assessing needs and evaluating policies and recommending policy terminations or other actions (beneficiary or ownership changes, inappropriate policy loans, etc.) that lead to policies being mismanaged. To my knowledge, the only state that actually requires licensing for fee-only advisers is New Hampshire. A cursory review of public records, however, reveals shocking omissions in New Hampshire’s enforcement of such rules. One of the state’s former insurance commissioners, who for years has operated a prominent website providing and charging for advice on life insurance, has never been licensed.

Agent continuing education (CE) requirements are problematic. Outdated courses are still deemed acceptable, similar courses can be submitted virtually indefinitely to fulfill bi-annual CE requirements, and many courses are so devoid of meaningful information that they are vacuous. While the potential merits of CE are undeniable, only serious testing and recordings provide the means of monitoring the true effectiveness of instruction and learning.

Another area for improved regulation concerns the insurer-agent relationship. This is not to suggest draconian involvement by the government, rather to recognize the legitimate public interests in properly structuring such relationships—just as is done in relationships between pilots and airlines, construction workers and contractors, nurses and hospitals. The contracts between insurers and agents show unequal bargaining power. Insurers have not only exercised their power unfairly but have—possibly illegally—prohibited certain agent conduct, while requiring other, on matters clearly outside the boundaries of the contract. Attorneys specializing in franchise law have stated that the typical agent’s contract is the most one-sided arrangement they have ever seen.

Over the past 20 years, I have written many articles and submitted extensive documentation of sales and managerial fraud in the life insurance marketplace, yet no one with any marketplace authority or power has ever taken any effective action. Nonetheless, my commitment to reform the life insurance industry and marketplace remains. In fact, while federal regulatory action and any other private assistance would be greatly appreciated, all that is needed for the transformation of the age-old, dysfunctional life insurance industry is the dissemination—the genuine and effective mass market dissemination—of the type of life insurance policy disclosure information that is available on my web site, BreadwinnersInsurance.com. [The full version of this letter is available on the site.]

save for retirement

Why People Don’t Save for Retirement

Since the Industrial Revolution, pursuing automation has been a worthwhile endeavor. The microprocessor has accelerated automation to the point that doing things like keeping a Rolodex or paper calendar seem quaint.

Automation and microprocessors have had a profound impact on people’s ability to plan and invest for their retirement, too. If you Google “online retirement calculator,” you find a plethora of websites devoted to helping people figure out how much they need to save for retirement. Technology doesn’t just help figure out the right amount, either;  technology is beginning to determine what assets to buy and when to purchase them.

However, despite all this progress, people in the U.S. continue to woefully under-save for near-term expenditures, let alone their retirement. According to a recent survey by the Economic Policy Institute, 45% of work-age Americans do not have any retirement savings. As the old saying goes, “You can lead a horse to water, but you can’t make it drink.”

Our human brains are great at reacting to immediate threats but terrible at evaluating long-term risk. The risk of not having enough to live on once you stop working is one of our greatest long-term risks. The reason that most people don’t start saving for retirement has little to do with their income or age but rather the inertia of signing up for their employer-sponsored retirement plan. Behavioral finance dictates humans like to do the default. In other words, people will not participate in their 401(k) if that is the default. Alternatively, employees will participate in their 401(k) if that is the default. Unfortunately, most employer retirement plans still require participants to recognize their need to save for retirement, overcome inertia, overcome the default and sign up to participate.

A client I recently worked with had a large hourly paid workforce. The 401(k) participation rate hovered around 30% (which is actually high for that industry) for about a decade. The employer did all the right things — matched contributions, had education meetings and made an adviser available to speak with employees about the importance of saving and how to use the 401(k) plan. Nevertheless, more than two-thirds of employees would not overcome inertia and participate in the plan. The mere act of filling out a piece of paper to help them save for a long-term risk was too great.

After we banged our collective heads against the wall, the employer decided to switch its 401(k) plan over to automatic enrollment at 3% of wages, with an annual increase of one percentage point, to a maximum of 5%. We all held our breath to see how many people would call human resources and ask to be taken out of the plan. But something surprising happened. HR’s phone didn’t ring. Eventually, a few employees did realize that money was coming out of their paychecks and opted out. However, today, the participation rate is 98% and has been for more than a year.

There is already talk among lawmakers about instituting a national mandatory IRA, and some states are looking into similar programs. It’s not outside the realm of possibility to see something like an automatic retirement savings program pushed through the halls of Congress within our lifetime. Until then, I encourage you to look into the merits of implementing an auto-enrollment feature on your retirement plan.