Photo of Susie Bilbro

Susie Bilbro advises clients on all aspects of employee benefit plan design and administration including compliance with ERISA, the Patient Protection and Affordable Care Act (healthcare reform), COBRA and the Internal Revenue Code. She has counseled public and private clients on employee welfare and pension benefits issues, both in connection with corporate transactions and on day-to-day administration. In addition, Susie has prepared submissions to the IRS and Department of Labor for qualified retirement and welfare benefit plans. Susie also has experience advising clients on executive compensation arrangements.

This post was updated on February 6, 2024, to reflect the 2024 Federal Poverty Level announced in January 2024.

On August 23, 2023, the Internal Revenue Service issued Rev. Proc. 2023-29, announcing that the Affordable Care Act (ACA) affordability threshold will be 8.39% for plan years beginning in 2024, a substantial decrease from the 9.12% affordability threshold set for plan year 2023. This marks the largest change yet in the affordability thresholds year-over-year. The affordability threshold is used to determine whether employer-sponsored health coverage is affordable for purposes of the ACA’s employer-shared responsibility provisions.Continue Reading UPDATE: Planning for Open Enrollment? Note the ACA Affordability Threshold Drop

NOTE: This post was originally written August 29, 2023, and was updated on September 27, 2023.

Breaking news: On September 19, 2023, the Oklahoma Attorney General filed a Petition for En Banc Rehearing, challenging the Tenth Circuit panel’s decision in this case and requesting a rehearing before the full Tenth Circuit bench. The Oklahoma Attorney General argued in his Petition that the panel’s decision contradicted established Supreme Court precedent and recent circuit court decisions regarding the scope of ERISA preemption, failed to address the ERISA “savings clause,” and was overbroad in its articulation of Medicare Part D preemption. On September 25, 2023, the Tenth Circuit ordered PCMA to respond to the Petition. We will provide further updates as this matter develops.Continue Reading Tenth Circuit Rules ERISA Preempts Oklahoma PBM-Reform Law

On April 28, 2023, the IRS Office of Chief Counsel issued Chief Counsel Advice Memorandum 202317020 (CCA Memo), with an important reminder to employers who provide health and dependent care flexible spending arrangements (FSAs) under an Internal Revenue Code (Code) Section 125 cafeteria plan: a failure to adequately substantiate FSA expenses before reimbursement may result in the loss of the tax-free status of all benefits provided under the Code Section 125 cafeteria plan.  Continue Reading Flexible Spending Accounts: Require Substantiation or Risk Disqualification

On July 25, the Department of Labor, Department of the Treasury, and Department of Health and Human Services (the Departments) released new Proposed Rules (Proposed Rules) that clarify certain requirements imposed by the Mental Health Parity and Addiction Equity Act (MHPAEA). In addition to the new Proposed Rules, the Departments issued their annual MHPAEA report to Congress (Report) to detail recent enforcement efforts.Continue Reading New Proposed Mental Health Parity Rules Amid Report of Widespread Failure

We recently authored an article for Washington Legal Foundation examining whether federal law preempts state prescription drug coverage laws that would apply to employer-sponsored group health plans. According to a provision in the Employee Retirement Income Security Act of 1974 (ERISA), state laws that “relate to” employee benefit plans are preempted by ERISA standards. Unfortunately, as we pointed out in the article, this “related to” statement is broad and vague.
Continue Reading State Prescription Drug Legislation and ERISA Preemption

Public companies maintaining deferred compensation arrangements for their executive officers should consider how recent changes to the regulations under Section 162(m) of the Internal Revenue Code (the Code) may impact the timing of payments to be made to participants and their beneficiaries under such plans – if action is required, the affected plans must be amended before December 31, 2020 to avoid complications or penalties.
Continue Reading Changes to Section 162(m) Affecting Deferred Compensation Arrangements

As part of the federal government’s response to the COVID-19 pandemic, the Internal Revenue Service (IRS), the Employee Benefits Security Administration (EBSA), and Pension Benefit Guaranty Corporation (PBGC) have recently provided relief to benefit plan sponsors by moving back certain upcoming plan compliance deadlines. See further below for a detailed list of the specific relief. IRS Notice 2020-23 provides that if any deadline would occur between April 1 and July 14, that deadline is automatically moved back until July 15, 2020, and this extension applies to a list of 44 employee benefit plan-related deadlines. The IRS notice triggered the PBGC’s disaster relief policy, which automatically extends certain PBGC deadlines that occur in the same April 1 to July 14 time period to July 15, 2020.

Additional relief was announced on April 28, in the form of a joint notice ( Joint Notice) issued by EBSA, IRS and the Treasury Department, which extended a number of deadlines for benefit plans and participants in accordance with CARES Act changes to ERISA Section 518. The Joint Notice’s relief applies to the “Outbreak Period,” the length of time beginning on March 1, 2020, and ending 60 days after the announcement that the COVID-19 National Emergency is over. On the same day, EBSA issued Disaster Relief Notice 2020-01 (Disaster Relief Notice). The Disaster Relief Notice clarified EBSA’s enforcement stance on certain fiduciary duties that plan sponsors have by extending deadlines. The Disaster Relief Notice also stated that the Outbreak Period extension, described in the Joint Notice, also applies to the distribution timelines for notices, disclosures, and other documents that Title I of ERISA requires plans to distribute to participants and beneficiaries. EBSA also released an FAQ which explains some of the relief provided by the Joint Notice and Disaster Relief Notice.Continue Reading IRS, EBSA and PBGC Provide Further COVID-19 Relief for Benefit Plans

On November 29, we participated in a webinar sponsored by Bright Horizons about employer-sponsored student loan repayment benefits. In order to help employees faced with mounting student debt, employers are offering creative solutions that help attract and retain workers. Earlier this year, healthcare company Abbott announced a program in which the company will contribute 5%

In January 2018, the U.S. Department of Labor (DOL) announced that final regulations affecting how some ERISA plans process claims and appeals will apply beginning April 1, 2018.  As explained below, the final regulations require that plans, plan fiduciaries, and insurance providers comply with additional procedural requirements when deciding claims involving disability determinations, which can impact a variety of different types of plans, including pension and non-qualified plans. The final regulations were initially released in December 2016, but had been delayed several times.
Continue Reading Action Needed by Certain ERISA Plans – New Disability Claims Procedures Apply Beginning April 2018