Takeaways from NCCMP

Euclid Specialty underwriters enjoyed attending the National Coordinating Committee for Multiemployer Plans (“NCCMP”) Annual Conference.  We thought it was the most informative NCCMP conference in recent years.  For those of you who could not attend, here are our thoughts on the major topics discussed at the conference.

1.  Multiemployer Funding Levels Are Improving.  In his annual report, Josh Shapiro, Deputy Executive Director for Research and Education for NCCMP, reported that multiemployer plans are “on the path to recovery.”  Although “it will take many years,” they are now in a “positive direction.”  He reported that many of their surveyed funds had utilized the 2010 statutory relief tools, including thirty-year amortization, 10-year smoothing of assets, and the 130% corridor.  Specifically, in 2011, multiemployers funds in the NCCMP survey were 84% funded on the PPA actuarial value basis and 75% on a market value basis (with no actuarial smoothing).  This compares to 2009 survey funding levels of 77% on an actuarial value basis and 65% on a market value basis.  In 2011, 59% of the funds were in the green zone, 17% in the yellow zone, and 24% in the red zone; this compares to 2008 survey results of 76% green zone, 15% yellow zone, and 9% red zone. 

Fiduciary Insurance Coverage for Plan Amendments and Other Non-Fiduciary Functions

Two recent cases underscore a recurring fiduciary liability insurance gap for trustees of multiemployer benefit plans:  they perform many functions in their capacities as trustees that, like plan amendments, are normally handled by a plan sponsor.  But these settlor functions may not be covered under standard fiduciary policies.  Indeed, the standard fiduciary liability insurance policy only covers fiduciary actions.  Trustees thus need insurance coverage for more than just claims relating to fiduciary activities.

Ensuring Continuity of Professional Liability Policies

Professional liability insurance programs are complex contracts that must be managed with the expertise of an experienced broker.  This is particularly true whenever a policyholder is considering switching carriers.  Policyholders may want to switch for a lower price, or to move to another carrier for affinity or other preferences.  But switching carriers without ensuring full continuity of coverage creates the risk that claims alleging negligence in prior years will not be covered.  Indeed, the risk of a claim increases every year an entity is in business, so coverage must be in place today for any negligence, error or omission which took place before the current policy period.

The DOL’s New Guidance on JATC Plan Expenses – The Modesty Policy

In 2011, the Department of Labor’s (DOL) Employee Benefits Security Administration (EBSA) increased enforcement of apprenticeship and training plans.  Dozens of open investigations have caused considerable confusion as to what expenses are appropriate in these plans, particularly as investigators have appeared to act capriciously with inconsistent standards across the country.  The key question is whether plan assets can be used for payments (1) for meals, gifts, entertainment, or other expenses associated with graduation ceremonies and (2) to market, advertise or promote the apprenticeship or training program.  On April 2, 2012, the DOL issued the first Field Assistance Bulletin of the year (FAB No. 2012-01) to provide guidance and promote consistency among EBSA regional offices in their enforcement issues.  The DOL defines a policy of permitting only “modest” expenses that can be justified under the educational purpose of the plan.