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Commenters to Plan Regulators: Electronic Disclosure Should Be the Default

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WASHINGTON BUREAU — Retirement plan sponsor and service provider groups are asking the U.S. Labor Department to loosen restrictions on electronic plan disclosure efforts.

The groups — the ERISA Industry Committee (ERIC), Washington, and the American Society of Pension Professionals & Actuaries (ASPPA), Arlington, Va. — were responding to a request for comments that the Employee Benefits Security Administration (EBSA), an arm of the Labor Department, posted in April.

EBSA asked for ideas from members of the public about how to improve the regulations governing electronic plan disclosures.The agency asked about ways it could expand the current electronic disclosure safe harbor to take new technology into account while still protecting the interests of plan participants and beneficiaries.

Some early commenters argued that increased use of electronic disclosures would be a good thing; others argued that many employees still lack the computer skills to make good use of electronic disclosures.

ERIC, an employer group that submitted its comment Monday, at the end of the comment period, has developed a detailed proposal for expanding the safe harbor. Electronic disclosure would be the default, but participants could choose to opt out.

The proposal would provide sufficient protection for individuals who do not wish, or are not able, to receive communications electronically, ERIC President Mark Ugoretz says in a letter describing the proposal.

ERIC wants to see the Labor Department, the U.S. Treasury Department and the U.S. Securities and Exchange Commission work together to develop a single disclosure, to reduce the risk of accidental noncompliance, Ugoretz says.

ERIC has asked the Labor Department to adopt the Treasury Department’s “effective ability to access” standard, which was published in 2006. A paper opt-out notice should not be required for anyone who has access to the applicable electronic medium, Ugoretz says.

The fact that some individuals still prefer paper does not justify defaulting everyone to paper, ERIC argues. “Most employees today have access to electronic media through countless devices, and they use electronic media even if access to electronic media is not an integral part of their duties,” Ugoretz says.

When the Labor Department adopted electronic disclosure rules in 2002, under Section 404(c) of the Employee Retirement Income Security Act (ERISA), the department only allowed the use of electronic disclosure if the employer’s electronic system was an integral part of the employee’s duties or the participant had affirmatively consented to electronic delivery, Ugoretz says.

Today, the number of people who have access to the Internet and electronic communications has grown much larger, and the existing safe harbor is too restrictive, Ugoretz says.

ASPPA, a group for plan service providers, also turned in its comment Monday.

Like ERIC, ASPPA sys electronic disclosure should be the default disclosure method.

ASPPA General Counsel Craig Hoffman says service providers would like to see agencies continue to set new standards that facilitate the wider use of electronic communications.

Electronic disclosure offers participants flexibility, and it also improves access to plan information for people with visual impairments and other types of disabilities, Hoffman says.

Like ERIC, ASPPA says there should continue to be an opt out feature for plan participants who want to continue to receive paper plan disclosures.

Other electronic disclosure coverage from National Underwriter Life & Health:


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