Wednesday, February 02, 2011

The "Benefit Counselors" Provision in 403(b) TPA Contract


Recently I came across a contract between a 403(b) Compliance TPA and a school district in California that had an interesting provision:

"The "XXX XXXXX" (name of TPA), through its licensed financial professionals ("Benefit Counselors"), will assist Plan Participants regarding their rights, benefits or elections under the 403(b) annuity arrangement upon reasonable request of the Employer. The "XXX XXXXX" may, as part of its Administrator duties, limit access to Plan Participants to those Benefits Counselors who meet its qualifications including professional licensing and adherence to a Professional Code of Conduct."

I cannot be sure that this contract is still in-force, so I'll limit my comments to what I believe is wrong with such provisions in general.

To provide a bit of background, this particular TPA charges a premium fee over most other TPA's in California (80% more compared to a few of the larger players) AND this TPA employs sales agents to sell 403(b) and 457(b) plans. The sales agent part is what is concerning as this TPA is now referring to them as "Benefit Counselors" and is attempting to exclude any other individual from working with the employees of this school district, essentially attempting to establish a monopoly. What is interesting to note is that the Employer via this arrangement has now made a Fiduciary delegation to this TPA to vet potential Benefit Counselors. I have been unable to find anything that talks about what qualifies these individuals to act as "Benefit Counselors" (BC's) and I do not see anything in this agreement that requires these BC's to act in the best interest of the participants, i.e. act as Fiduciaries. The fact that these people are licensed and adhere to a professional code of conduct is meaningless - are they held to a Fiduciary standard? The answer is that they will not be.

So you have an Employer who likely doesn't understand what they are doing making a Fiduciary delegation to a conflicted entity who ONLY allows Benefit Counselors that are loyal to the TPA and owe no fiduciary duty to the participant.

I'm not harping on the monopoly aspect of this, I could support that if the environment was one that contained a duty of loyalty and was based on Fiduciary principles - I am deeply concerned that plan participants may be exposed to sales agents masquerading as qualified "Benefit Counselors" who will NOT act in the best interest of plan participants.

Captive Benefit Counselors of a TPA with full delegated powers who owe no fiduciary duty is dangerous combination.

Scott Dauenhauer CFP, MSFP, AIF
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