There had been a lot of noise in the market that Open MEPs, where this commonality didn’t exist, were also okay. This struck me as odd. Did the rules change when I wasn’t paying attention? I don’t think so. I’ve come to the conclusion that what did change was that the market decided that the existing rules weren’t clear enough. There was a disconnect between what was written into ERISA on MEPs and what was absent in the Internal Revenue Code about MEPs. Because of this lack of continuity, some aggressive players in the market went ahead with the Open MEP idea, taking the position that if it isn’t explicitly prohibited, it was therefore permitted. I remained skeptical and even wrote about it on my personal blog (MEP’s EBSA Speaks and More Opinions). Then in May of 2012, the Department of Labor issued the TOTH Letter, DOL Advisory Opinion 2012-04A. With this stroke of the pen (or keyboard), all of the noise in the market quieted down.
Flash forward four years and this concept is again at the forefront of the conversation. In fact, a version of Open MEPs, now being called Pooled Employer Plans (PEPs) is close to becoming a legal structure. Prior to the election, I was interviewed on this subject (Multiple Employer Plans Have a Bright Future) and discussed whether or not this idea would have its day. The creation of these new PEP plans is part of a bill that was marked up by the Senate Finance Committee in September called The Retirement Enhancement Savings Act of 2016. This bill supports the notion of an Open MEP, now being called a PEP, effectively removing the nexus requirement if certain conditions are met. Timing is everything and now the question really is, when will this bill get passed? It has made it through Senate Finance unanimously (a very rare occurrence) and has bipartisan support. At this point, it seems that the only decisions left to be made are regarding what broader piece of legislation will this Act be attached to and which president will get the credit for it, Obama or Trump.
Professionally, I find this exciting. As readers know, Unified Trust Company is a professional ‘named fiduciary’ in our role as Discretionary Corporate Trustee over retirement plans. Within these new PEP requirements are the appointments of a “pooled plan provider”, a ‘named fiduciary’ to act as the plan administrator and one or more named trustees who “must be a bank or other financial institution” that would be responsible for contributions and assets. Unified Trust would be a great fit potentially for some of these roles. Whether these come to fruition sometime soon or not, the future is looking very bright.
- Jason Grantz