The DOL’s 2023 regulatory agenda: New rules for 401(k)s and group health plans

From defining “fiduciary” and “employer” to seeking feedback on pooled employer plans, the Department of Labor has released an ambitious regulatory agenda for the next six months.

“Our Regulatory Agenda additionally reflects our ongoing commitment to the Biden Administration’s prioritization of economic security, raising wages, supporting worker organizing and empowerment, and addressing the threat of climate change, while embedding equity across the department’s agencies, policies, and programs,” according to the DOL, as it unveiled the rules it plans on attacking in the coming months.

Federal departments and agencies release regulatory agendas twice a year; they are collected by the Office of Management and Budget and released as part of an administration-wide regulatory guide. The latest agenda is called the administration’s “Fall” agenda, even though it was not released until this month.

The agenda states that EBSA “will support the administration’s agenda to protect worker’s pensions from the threats of climate-related financial risk by implementing two executive orders that focus on the impacts of climate change and climate-related financial risk.”

Related: DOL’s final ESG rule rolls back restrictions in retirement plans (some early reactions)

The agenda includes a variety of actions Labor plans in the coming months, including:

• A proposed rule updating the definition of “fiduciary” in an effort to ensure that people who offer advice to retirement plans are free from conflicts of interest. The rule would take into account changes in the marketplace and would attempt to ensure that plan participants, officials and IRA owners that they are receiving sound investment advice.
• A proposed rule that would seek comment on whether to amend or withdraw its 2018 rule that established an alternative set of guidelines for determining whether an employer association may indirectly act in the interest of an employer for purposes of establishing multiple employer group health plans. A 2019 decision by the U.S. District Court for the District of Columbia vacated part of a Trump Administration rule dealing with association health plans,
• A request for comment on pooled employer plans, in an effort to increase participation. The Setting Every Community Up for Retirement Enhancement Act of 2019 amended ERISA to include a pooled employer plan as a type of single employer pension benefits plan and granted the Labor Department the power to issue guidance to carry out the provisions. The regulatory agenda states that EBSA officials intend to “start by consulting with a diverse set of stakeholders, including employers and employees and their representatives and retirement plan service and investment providers, to explore areas where regulatory or other guidance would facilitate establishment and operation of pooled employer plans.”
• A request for comment on ways to improve the effectiveness of retirement plan disclosures required under ERISA, balanced with the cost to plans and plan participants and beneficiaries of providing those disclosures. EBSA officials said they intend to begin that process by consulting with a diverse set of stakeholders. The review would “explore whether, and how, the content, design, and delivery of such disclosures may be reimagined, improved, consolidated, standardized, and simplified to enhance participants’ disclosure experiences, promote greater participant engagement, and improve outcomes.”
• A proposed rule updating the Voluntary Fiduciary Correction Program, which is designed to encourage voluntary correction of fiduciary violations. The updated rule would expand the scope of some transactions currently eligible for correction and streamline the process for others.
• Continuation of efforts with the IRS and PBGC to improve Form 5500, the Annual Return Report of Employee Benefit Plan. The project is designed to make data more mineable and also is focused on enhancing the agencies’ ability to collect data that meets changing compliance projects and programs.
• A final rule amending rules implementing the Mental Health Parity and Addiction Equity Act (MHPAEA). The amendments would, among other things, update requirements to take into account experience with the law since the rules were finalized, as well as amendments to the law.
• A final rule that would revise the department’s Exemption Procedure Regulation process for granting prohibited transaction exemptions. That process was last updated in 2011. Some of the revisions are designed to improve the readability of the process, but the majority reflect changes that have occurred since 2011. Among other things, the amendment would clarify the types of information needed for a complete application, revise definitions, and expand opportunities to submit information electronically. The proposal originally was published in May 2022 but was extended and then extended further to allow for a virtual public hearing. The comment period ended on Oct. 28.