Cost of Living "Adjustment"

A couple of weeks back, the Social Security Administration announced that, for the second year in a row—but only for the second time since 1975—there would be no cost of living adjustment (COLA) for Social Security recipients.

Of course, this close to an election, it should come as no surprise that some went scurrying to introduce legislation that would provide some kind of supplemental funding to the nation’s seniors; similar actions were undertaken a year ago, ostensibly in the interests of economic stimulus, as well as the importance of supporting those on fixed incomes. But this election year is one unlike most, perhaps any, in our memory—and concerns about the federal budget deficit have, thus far, overcome the political class’s natural inclinations in such matters.

Whether or not you are on a fixed income, it’s hard to credibly argue that prices aren’t rising on everything from food to gasoline to utilities; from real estate taxes (those reassessments never come as rapidly when prices decline, do they?) to the monthly cable bill. That said, there is a formula on which things are based, one that has, perhaps more often than not, worked to the benefit of those drawing Social Security benefits. It is a formula that, in 2009, provided those beneficiaries with a 5.8% increase in benefits, the largest in a quarter century. That’s right—did YOU get a 5.8% increase in 2009?


Now, some of this is the timing in the formula, which considers the period from September of one year to the next. For example, in the year that provided a 5.8% increase, if the formula had been applied from December to December (rather than September to September), the COLA would have been 0.8%, not 5.8%. Some of it is because the COLA is calculated on an index that considers the purchases that current workers make, rather than retirees1. And yes, some of it is because the Social Security benefit is never adjusted downwards—even when there is a decline in the cost index it tracks2. In fact, the real reason that Social Security recipients/beneficiaries 3 aren’t getting a cost of living adjustment next year is not because prices haven’t gone up, but rather because prices haven’t yet risen above the level of September 2008 (remember $4/gallon gasoline?).

However, for retirees accustomed to an annual, upward adjustment in their benefits, the lack of an increase surely came as something of a shock4, particularly after politicians found a way to smooth it over the previous year (and may yet again).

The good news for Social Security beneficiaries is that, at least under current law, their annual benefits do not decrease and retain the potential to increase based on adjustments, however imperfect, in a designated cost of living index5. Certainly, in a time when many have been asked to absorb a cut in pay or lost their jobs completely, with a family to support, there are worse things than living on a “fixed” income.

Still, it should serve as a reminder to us all that planning for retirement should look beyond the income we happen to be drawing when we leave the workforce. After all, if the income we have at retirement isn’t enough to adjust to the costs of living in retirement - It might well cost us an adjustment in how, or how well, we live through retirement.


—Nevin E. Adams, JD

1 There were no automatic COLAs in Social Security until 1975 (see http://www.ssa.gov/policy/docs/ssb/v70n3/v70n3p1.html)

2 Consider that, if costs were adjusted for downward as well as upward moves, last year benefits would have been cut by 2.7%.

3 Disabled workers and their dependents account for 19% of total benefits paid, according to the Social Security Administration (see http://www.socialsecurity.gov/pressoffice/basicfact.htm).

4 I never cease to be amazed at what a high percentage of retirement income Social Security provides—not because it was designed that way, mind you, but rather because it remains relatively constant in an otherwise variable pooling of retirement income sources. The Social Security Administration notes that Social Security provided at least 50% of total income for just over half (52%) of aged beneficiary couples and 73% of aged non-married beneficiaries. Moreover, it was 90% or more of income for more than one in five aged beneficiary couples and 43% of aged non-married beneficiaries, though “total income” in this calculation excludes withdrawals from savings and non-annuitized IRAs or 401(k) plans. Overall, the Social Security Administration says that Social Security benefits represent about 40% of the income of the elderly.

5 More information about the COLA is at http://www.socialsecurity.gov/cola/2011/factsheet.htm. An interesting 2009 webcast on the subject titled “What Happened to My Social Security COLA?” is viewable at http://www.blip.tv/file/2629162, and a transcript is available at http://assets.aarp.org/rgcenter/ppi/econ-sec/transcript_forum_090921.pdf For more information on some of the alternative COLA indexes, the AARP Public Policy Institute has published a fact sheet on the consumer price index and how it impacts Social Security Benefits at http://assets.aarp.org/rgcenter/ppi/econ-sec/fs160.pdf

"Interests" Bearing

Last week the Labor Department issued a proposal that would, by its reckoning, provide the first update to the definition of an ERISA fiduciary since shortly after the birth of the federal regulation (see DoL Broadens Fiduciary Net.

The move was much-anticipated and, in the eyes of many, long overdue. Clearly, the Labor Department wanted to narrow the exceptions to that definition (that were, somewhat ironically, put in place by the Labor Department of 1975) and, in the process, subject more advisers to ERISA’s fiduciary standards.

At a high level, the Labor Department is seeking to restore the two-part test for fiduciary status found in ERISA, one that was expanded to be a five-part test in the 1975 regulations. The proposal seeks to set aside the additional conditions that the advice be rendered “on a regular basis,” that the advice would serve as a “primary basis” for investment decisions with respect to plan assets, that the recommendations are individualized for the plan, and that the advice be provided pursuant to a mutual understanding of the parties. Instead, the new proposal would impose fiduciary status when a person renders investment advice with respect to any moneys or other property of a plan, or has any authority or responsibility to do so, and receives payment (direct or indirect) for that advice.




The Implications

That change is almost certainly going to drive some of those advisers (and their sponsoring organizations) away from these programs, though I am hard-pressed to mourn that loss (the proposal left intact the exemption for education, and if those lines are easily crossed, by now surely we all know where they are). Those who remain may well charge more for their services in compensation for the extra exposure, certainly in the short run. However, those who do so will be competing against organizations and advisers that made that commitment years ago and who appear to be competing quite successfully already. Consequently, if the newly “converted” seek to profit by a rapid escalation of their fees, I suspect they won’t find that to be a successful strategy.

Those responsible for closely held stock valuations are most likely to feel some pain in the short run. After all, they have long enjoyed a special dispensation from fiduciary status At this writing, I’m not altogether sure how one conducts a security valuation that is exclusively in the interests of the plan participants and beneficiaries—but I’m no more comfortable with the notion of a valuation that ignores the impact that those valuations could have on the exposure of the plan that takes on those assets based on that valuation.

One of the most interesting aspects of the proposal was the Labor Department’s expressed interest in reconsidering its position that a recommendation to a plan participant to take a permissible plan distribution would not constitute investment advice, even when combined with a recommendation as to how the distribution should be invested. Said another way, the DoL is now willing to consider that such encouragement could constitute advice at a level sufficient to trigger ERISA fiduciary status. In announcing its interest, the DoL noted that “[c]oncerns have been expressed that, as a result of this position, plan participants may not be adequately protected from advisers who provide distribution recommendations that subordinate participants’ interests to the advisers’ own interests.” In fact, there has already been litigation involving rollover advice—and there are any number of stories out there about advisers persuading participants to take advantage of early withdrawal provisions and pull their money out of the plan to put it in their hands. Not that that couldn’t be advantageous for the participant—but shouldn’t the adviser encouraging them to pull money from ERISA’s environs be held to that same standard of care?

Of course, at this point, the proposal is just that—though it will be interesting to see the comments that are made on this new definition over the next 90 days (1).

As for where this takes us, it has not always been clear that all plan sponsors fully appreciated the significance of working with advisers willing to put plan and participant interests ahead of their own. But they should; and, IMHO, this proposal will improve the chances that they—and their participants—will benefit from that protection, whether they seek it or not.

—Nevin E. Adams, JD

(1)Comments on the proposal can be submitted electronically by e-mail to e-ORI@dol.gov (enter into subject line: Definition of Fiduciary Proposed Rule) or by using the Federal eRulemaking portal at http://www.regulations.gov.

Paper “Trail”

Last week, the Department of Labor reissued its proposed regulation on participant fee disclosure.
Those familiar with the last proposal (put out by the prior Administration—see “EBSA Finishes Regulatory Package with Participant Disclosure Proposal”) will doubtless find this one to be a modest improvement (see “EBSA Releases Final 401(k) Fee Disclosure Rule”). Aside from the passage of time, this version incorporates additional input from the retirement plan community, financial services regulators, and even participant focus groups—most of it good, and all of it interesting.1

The rule itself is worth a read for, IMHO, it offers valuable insights not only into the suggestions made, but into the Labor Department’s reaction and response to those comments. As always, the devil lies in the final details, but one senses a strong interest in balancing the desire to give participants more information to make better decisions with the practical realities attendant in providing transparency and consistency of disclosure in an industry whose fee structure has become increasingly obtuse and intertwined.

That said, and while this is a marked improvement from the current state of affairs, IMHO, this regulation will still leave us a long way from producing what I think will actually show participants what they are paying for these retirement accounts.


Sure, they’ll get more frequent information on their investments, and sure, there will be more (and probably better) comparative information about those investments, both fees and performance. Yes, they will see fees expressed both as a percentage and as a dollar amount per $1,000 invested, and yes, they will get more information on account restrictions, annuity provisions, and revenue-sharing than many have probably ever received previously. And yet, for all this extra data that will be produced, provided, and distributed, I can’t quite shake the image of a participant’s eyes glazing over as they desperately try to make sense of what they have been given.

Of course, it’s possible that many won’t bother reading it at all, though a large part of the financial justification for these regulations is how much time the disclosures’ availability will spare participants searching for information about these investments. In fact, to my eye, perhaps one of the most significant revisions from the prior regulations was a reset in the estimation of just how many participants are expected to benefit from these reams of paper. The prior proposed regulation estimated that 29% of participants in these programs would realize some kind of time-savings, but the Labor Department, responding to a suggestion from a commentator, has upped that—to an eye-popping 70%-76%!2

Now, that determination isn’t, IMHO, essential to the importance of this effort. Personally, the 29% figure is much more in line with my experience, mostly because what I see, time and again, is that the more paper we sling at participants, the less attention they pay. And, make no mistake, with this new proposal, we will be slinging a lot more paper at participants, and more frequently. Despite the effort to alleviate the complexity of basis points and revenue-sharing, it’s hard to shake the sense that this well-intentioned effort will simply overwhelm participants, while at the same time placing a large and growing burden on the backs of those who must provide, administer, and explain it.

It’s clear to me that the information is needed, and as I read the proposal, it’s clear to me that the regulators have made a good-faith effort to strike a balance in providing it.

That said, I doubt very much that it will make much difference in participant behavior, nor am I optimistic that it will actually enlighten many, certainly not the three of four cited in the Labor Department’s projections. This is not a shortcoming of the DoL’s attempt here—frankly, in view of the tangled web that has become 401(k) retirement fee calculations, I think they are to be lauded for their vigorous and balanced efforts.

However, what participants really want and, IMHO, what they need to really understand what is going on here is to have that single figure on the statement—even if produced only once a year—that tells them what their retirement plan costs.

This new regulation may hasten that day’s arrival. But until it comes, I fear we may be doing little more than papering over the real problems.

—Nevin E. Adams, JD

1 There is another interesting inclusion in this proposal—one that has to do with disclosures, but perhaps not participant fee disclosures, per se. With this proposal, which merges the 404(c) disclosure regulations with those of non-404(c) plans, the Labor Department added a provision to the 404(c) regulation, stating plainly what those of us in the industry have long understood; that, even where ERISA 404(c) protection applies, it does not shield fiduciaries from the duty to prudently select and monitor investments. However, this statement was only referenced in the preamble to those regulations rather than in the body—and thus, some courts had seen fit to disregard its implication in a series of revenue-sharing suit dismissals (see “IMHO: Second Opinions"). That, of course, is fodder for another day.

2 The recommendation was based on a finding from the Employee Benefit Research Institute’s (EBRI) 2007 Retirement Confidence Survey, which indicated that 73% (plus or minus 3%) of workers saving for retirement used written materials received at work as a source of information when making retirement savings and investment decisions.

The regulation is online HERE

A fact sheet summary is online HERE

A model of the information chart is online HERE

“Pressure” Point

Last week, I got an early morning call from my daughter. This, of course, is not an everyday occurrence, and since she had driven MY car to work that morning, it didn’t bode well as a start to the day for either of us.

Turns out, she had noticed an unusual warning light as she pulled into her workplace—and she had even taken the time to determine its meaning. The good news is, the light indicated nothing more serious than low pressure in one (or more) of the tires. Now, my vehicle routinely prompts me for certain scheduled maintenance visits—many of which I ignore/postpone since they seem mostly designed to keep me spending money at the dealer. Unfortunately, the last time this particular light came on, it was a somewhat belated acknowledgement that one of my tires was flat. Consequently, on this particular occasion, I immediately jumped to the conclusion that we were dealing with a flat tire.

By the time I got to the car (fortunately, it was sitting in a parking lot on a brilliant sunny morning and not along some busy highway in the rain), it was clear that my initial assumption was incorrect. Not only were none of the tires flat, they didn’t even look “low.” Nonetheless, I cautiously drove to the nearest gas station (at a speed commensurate with a fear that the tire would slip off the rim at any minute) and checked the tires. Working with a more precise measuring device than mere visualization, it seemed that one of the tires was “low.” Not critically low, mind you (in my estimation, anyway), but apparently low enough that the manufacturer thought it should be called to someone’s attention.

Initially, I was aggravated—after all, the owner’s manual didn’t specify at what level that indicator kicked on, and while the physical disruption to my day was minimal, the emotional toll was considerably higher. Ultimately, however, I felt pretty good about the whole thing—glad that it hadn’t turned out to be as bad as I had feared, glad that my daughter hadn’t been stranded in the middle of nowhere with a flat tire, and, yes, glad that I hadn’t been driving to work when that light came on. Personally, I think the manufacturer set the warning a little high—but then, I reminded myself, it was designed to alert you while there was still time to remedy the situation. And, while my morning had been somewhat disrupted, I kept thinking about the situation that warning averted (I tried not to think about the “discussions” I had with my kids just three weeks earlier about the importance of regularly checking the air pressure in their car’s tires).

These days, there are many measures of what we’ll need to enjoy a financially secure retirement. The problem, IMHO, is that the more precise those measures, the more obscure they are to the participants we expect to respond to them. You can quibble (and some do) about the need to garner savings sufficient to replace 70% or 80% of pre-retirement income. You can argue (and a growing number do) that Social Security shouldn’t be factored in, that retiree medical costs are too often given short shrift in projections, that inflation will reemerge with a vengeance (though I think most projection tools already provide a generous apportionment on that front), or that the inexorable application of regular, annual salary increases to those projections no longer comports with business realities.

You can argue, as some have (and do), that these projections are all wildly distorted as some kind of scare-mongering tactic by the money management industry to coerce the investing public into over-saving. Heck, you can even rationalize an aversion to undertaking these types of projections on the simple basis that there are far too many variables to consider to produce an accurate result.

Indeed, when it comes to retirement planning, IMHO, too many dismiss those warning signs of inadequate savings as idiot lights: an arbitrary setting by a product manufacturer that they can dismiss and/or defer until a time when it is more convenient for them to deal with it.

However, when it comes to trying to actually live in retirement on the funds we have been able to accumulate for that purpose, it seems to me that it’s better to err on the side of caution; to see the warning sign as an opportunity to do something small when it’s relatively easy—instead of being forced to do something hard when it’s not.

—Nevin E. Adams, JD

Scale "Model"

I’ve long had an issue with weight scales, for the perhaps obvious reason that, these days, they frequently deliver a message I’d just as soon not receive. See, even when I’m feeling pretty good about the way I look and feel, those scales generally remind me that is at a weight that I know is not “appropriate” for my height.

Over the years, I have rationalized that gap in any number of ways; that those scales are frequently inaccurate, that the definitions of “appropriate” are skewed, even that I’m wearing clothes (or shoes) at the moment that are throwing things off (hey, I’ve got pretty big feet). But since I know, deep down, that those are, after all, mere rationalizations for avoiding the truth, these days I pretty much just treat stepping on scales as I would stepping on a rusty nail—which is to say, I avoid them at all costs…at least until I manage to get back on a regular exercise regimen.

My sense has long been that that is how participants approach the issue of figuring out how much they need to save for retirement. It’s not that they don’t know they should know that number, and not always that they just don’t have time to deal with it. Mostly, they have a sense that the number will be larger than they would like it to be, and that, coupled with a sense that the savings they have accumulated will be smaller than it is “supposed” to be—well, let’s just say they don’t want to be reminded that their retirement plan health isn’t good.

There was some of that in the “National 401(k) Evaluation” published by Financial Engines (see Report Highlights Savings Gaps, Ways To Close Them). The report was, in fact, replete with signs that most participants in the sampling are not in very good shape when it comes to retirement, with roughly three-fourths not on track to replace 70% of their pre-retirement income at age 65. When you consider that about a third have badly allocated portfolios (the report somewhat euphemistically terms these “inefficient”), and that nearly 40% are not contributing enough to receive the full match—well, let’s just say that there are some obvious reasons for the gap.

IMHO, it’s more than a bit ironic that studies routinely show that participants who take the time to make that retirement assessment feel better—and are more confident—about their retirement preparations than those who don’t. Of course, it could be that the only ones taking the time to check things out are those who are already reasonably confident that they’ll get a good result; unfortunately, I don’t recall ever seeing a connection between pre-assessment confidence and post-assessment (nor, for that matter, do these confidence assessments typically correlate confidence with savings that justify that sentiment).

Still, I like to think that those who take the time to do the assessment find out that things are perhaps not as hopeless as they had thought—and that, following the assessment, they walk away with a specific action plan for either staying on track, or closing the gap between needs and reality.

Inside the Financial Engines report there are a couple of examples that illustrate the point. One is a 45-year-old participant making $50,000/year who currently has a $50,000 account balance and who is deferring 4% in a portfolio that is overly risky—a combination that the report says will leave him 27% below his idea goal (if the market performs “typically”). But the report notes that if this participant reallocates at an “appropriate” risk level, they can narrow the gap to 23%; if they do that AND save 2% more per year, they can cut the gap to 14%; and if they do both AND delay retirement two years—well, they’re on track. Or, this participant could simply save 8% more a year to achieve the same gap-closing result.

Now, like with my bathroom scale, you can quibble with the assumptions, but the important thing, IMHO, isn’t taking the time to figure out you have a gap—most of us probably have that sense before we ever sit down with our retirement plan statement. Rather, it’s the plan that comes out of that process—the plan that helps us get back where we need to be—that not only helps us feel better, but gives us a reason for that feeling. And, like that bathroom scale model, the longer you put that off, the longer that “recovery” will take – and the harder it will be.

—Nevin E. Adams, JD