• Adopt Design Changes by the End of the Plan Year:  If you made any design changes to the plan during the year, you generally must amend your plan to reflect those design changes by the last day of the 2012 plan year (i.e., December 31, 2012 for calendar year plans).
  • Update Summary Plan Description if Needed:  Summary Plan Descriptions (SPDs) must be updated once every five years if the plan has been amended during the five-year period and once every 10 years for other plans.  If your Section 403(b) plan is subject to ERISA, consider whether your SPD needs to be updated. 
  • Comply with Form 8955-SSA Reporting Requirements:  The Form 8955-SSA is the form that replaced the Schedule SSA of the Form 5500.  The Form 8955-SSA reports information about plan participants with deferred vested benefits.  Generally, the Form 8955-SSA is due by the last day of the seventh month after the plan year ends (subject to a 2 1/2-month extension).
  • Consider Impact on Employee Benefit Plans if Supreme Court Grants Certiorari in Defense of Marriage Act (“DOMA”) Cases:  There is a strong possibility that the Supreme Court may grant certiorari this term in a series of cases challenging Section 3 of DOMA.  Section 3 of DOMA currently provides that for purposes of federal law, “marriage” means only a legal union between one man and one woman as husband and wife.  Under this same Section of DOMA, “spouse” refers only to a person of the opposite sex who is a husband or wife.  DOMA does not invalidate same-sex marriages, but under DOMA certain federal benefits can only flow to opposite-sex spouses.  DOMA affects employee benefit plans because, while DOMA is the law, employers are generally free to choose whether to offer benefits to same-sex spouses.  If the Supreme Court grants certiorari and decides that Section 3 of DOMA is unconstitutional, it will have a significant impact on employee benefit plans and employer choices.  For example, all Section 403(b) plans would probably have to require same-sex spouses to consent to beneficiary designations.  Any Supreme Court decision would likely take effect immediately, leaving employers to scramble if they have not previously given thought to how a decision overturning DOMA might impact their employee benefit plans.  If the Supreme Court grants certiorari in the DOMA cases, we intend to publish a newsletter explaining the impact such a decision could have on employee benefit plans and the issues employers should consider in advance.  
  • Review 2013 Plan Limits:  Familiarize yourself with the 2013 plan limits.  See “Retirement Plan Limits for 2013” for more information.
  • Provide Safe Harbor Notice by December 3, 2012 for Calendar Year Plans:  As a reminder, if your Section 403(b) plan uses an ACP contribution safe harbor, you must provide the safe harbor notice at least 30 days, but not more than 90 days, before the beginning of each plan year (i.e., December 3, 2012 for calendar year plans).
  • Provide Annual Automatic Enrollment Notice by December 3, 2012 for Calendar Year Plans:  As a reminder, if your Section 403(b) plan is subject to ERISA and has automatic deferrals, you must give an annual automatic enrollment notice at least 30 days, but not more than 90 days, before the beginning of each plan year (i.e., December 3, 2012 for calendar year plans).
  • Provide Annual Qualified Default Investment Alternative Notice by December 3, 2012 for Calendar Year Plans: As a reminder, if your Section 403(b) plan is subject to ERISA and you are relying on the qualified default investment alternative (“QDIA”) safe harbor, you must give an annual notice at least 30 days, but not more than 90 days, before the beginning of each plan year (i.e., December 3, 2012 for calendar year plans).
  • Comply with Required Minimum Distribution Waiver for 2009: The Worker, Retiree, and Employer Recovery Act of 2008 waived required minimum distributions (“RMDs”) for 2009. Plan sponsors must adopt conforming amendments by the last day of the first plan year beginning on or after January 1, 2011 (i.e., December 31, 2011 for calendar year plans) to reflect the waiver of 2009 RMDs. See “IRS Issues Additional Guidance on the Waiver of 2009 Required Minimum Distributions” in our November 2009 Employee Benefits Update for more information.
  • Provide Participant Fee Disclosure Information: Under recently issued regulations, Section 403(b) plans that are subject to ERISA are required to provide information to participants on the plan and the plan’s investment options, including the fees and expenses associated with the available investment options.  Plans were required to provide the initial disclosures to plan participants by August 30, 2012.  Plans also need to provide quarterly disclosures on the fees deducted from a participant’s account.  The first quarterly disclosure is due on November 14, 2012.  For more information, see “Department of Labor Issues Final Fee Disclosure Regulation for Qualified Plans” in our March 2012 Employee Benefits Update.
  • Provide Participant Benefit Statements:  Section 403(b) plans that are subject to ERISA must provide individual benefit statements at least annually, although plans that permit participants to direct the investment of their accounts must provide the statement at least quarterly.  Plans must also provide the statement upon request.
  • Distribute Summary Annual Report:  Section 403(b) plans that are subject to ERISA must distribute a summary annual report, which is a summary of the information reported on the Form 5500.  The summary annual report is generally due nine months after the plan year ends.  If the Form 5500 was filed under an extension, the summary annual report must be distributed within two months following the date on which the Form 5500 was due.
  • If Adding an ACP Contribution Safe Harbor for 2013, Adopt Amendment Before the 2013 Plan Year:  ACP contribution safe harbors may not be adopted mid-year. Accordingly, if you wish to add an ACP contribution safe harbor to your Section 403(b) plan for the 2013 plan year, you must adopt an amendment by December 31, 2012 for calendar year plans.
  • Comply with New Form 5500 Reporting Requirements: As a reminder, effective for plan years beginning on or after January 1, 2009, Section 403(b) plans subject to ERISA must comply with standard Form 5500 filing requirements, including an annual plan audit for large plans (i.e., plans with 100 or more participants) and detailed financial information for small Section 403(b) plans (i.e., plans with fewer than 100 participants).