Compliance October 27, 2006

EBSA Puts Out HSA Guidance Round II

October 27, 2006 (PLANSPONSOR.com) - Federal

 

officials on Friday distributed their second round of

 

regulatory guidance about how to deal with legal issues

 

regarding health savings accounts (HSAs).

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A news release from the US Department of Labor’s Employee Benefits Security Administration (EBSA) said the newly released Field Assistance Bulletin (FAB) 2006-02 is designed to not only answer questions from its first round of guidance in FAB 2004-1 , but other issues that have arisen since.

The questions have to deal with the extent to which HSAs present regulatory issues that come up under the Employee Retirement Income Security Act (ERISA). The 2004 release explained that HSAs generally will not constitute “employee benefit plans” covered by Title I of ERISA where there is limited involvement by the employer.

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Friday’s document addresses whether particular conduct by employers in connection with an HSA arrangement goes beyond the conditions in FAB 2004-1, such as paying fees in association with establishing an HSA, the circumstances under which funds can be deposited into the account and legal implications of the employer offering some or all of the investment lineup used for the company’s 401(k) plan.

The new FAB also addresses the applicability of the prohibited transaction provisions of section 4975 of the Internal Revenue Code to HSAs that meet the conditions of FAB 2004-1 and are not covered by Title I of ERISA.

FAB 2006-02 is available here .

Administration October 26, 2006

SEC Pries Deeper Into Mutual Fund Kickback Deals

October 26, 2006 (PLANSPONSOR.com) - The Securities and Exchange Commission (SEC) has kicked off an investigation into whether independent contractors paid rebates to mutual-fund companies in an effort to snag contracts for jobs such as producing shareholder reports and prospectuses.
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The Wall Street Journal reports the question in the SEC’s investigation is whether mutual fund companies misused investor money and misled their boards about why they picked certain service providers, namely those that had given them kickbacks, according to people familiar with the probe.

The agency is targeting 27 mutual fund companies that it claims took kickbacks from contractors in exchange for recommending to their funds’ boards that the service providers’ contracts be renewed, according to the WSJ.

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The regulator’s investigation into these fund companies’ practices follows allegations against the fund services unit of BISYS Group Inc. for paying a total of $230 million in kickbacks between July 1999 and June 2004 to snag such contracts from the 27 mutual fund advisers. The claims against BISYS ended in a $21.4 million settlement reached in September (See  SEC Investigation of BISYS Comes to a Close ).

The charges by the SEC against BISYS claimed that the financial services outsourcing firm “agreed with the advisers of certain US mutual funds to use a portion of the fees paid to [BISYS] by the mutual fund to pay for, among other things, expenses related to the marketing and distribution of the fund shares, to make payments to certain advisers, and to pay for certain other expenses.”

Stemming in part from information revealed during the BISYS investigation, the regulator has already issued letters to some of the 27 fund companies requesting they give up details about their dealings with BISYS, sources told the newspaper.

According to the Journal, the roster of companies asked to provide the details are not likely to incriminate any of the larger mutual fund companies, as most of BISYS’ clients include smaller banks.

The complaint from the SEC against BISYS discussed the behavior of one such fund company – “Adviser A” – that allegedly demanded millions of dollars in kickbacks for recommending BISYS’ service contract be renewed, saying, if BISYS refused, it would offer the deal to a competitor.

The WSJ reports the complaint said BISYS did agree to the arrangement with the unnamed adviser, and over a five year period, funds totaling $17.3 million were subtracted from shareholder accounts at the fund company, and were used by “Adviser A” to cover marketing costs, as well as country club initiation fees. In exchange, the agreement said that BISYS would be paid 0.20% of the fund’s assets –  of that amount, BISYS only kept about one quarter.

Some of the money was paid to “Adviser A” above the table, and the rest was paid to the mutual fund adviser through a “marketing budget,” according to the SEC complaint.

News of the SEC’s previous investigation of BISYS sparked an internal investigation in April 2005, and the company has announced it has since terminated all of its agreements with mutual fund advisers (See  BISYS Adopts Reform on Mutual Fund Agreements ).

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