In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and subsequent state abortion bans, the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services issued a Final Rule (Final Rule) modifying the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule in order to support reproductive health care privacy. As with prior HIPAA rules, the Final Rule applies to covered healthcare providers, health plans, or healthcare clearing houses (each, a Covered Entity) and their business associates.Continue Reading New Reproductive Health Care Privacy Final Rule: Key Compliance Steps and Dates
Gender-Affirming Care Remains a Hot Topic in 2024
Our April 9 blog post highlighted several issues to watch during 2024, one of which was gender-affirming care considerations.Continue Reading Gender-Affirming Care Remains a Hot Topic in 2024
BREAKING: DOL Expands Definition of Fiduciary under ERISA
The U.S. Department of Labor issued final regulations on April 23, expanding the definition of “fiduciary” under ERISA. The final regulations alter the definition of “investment advice fiduciary” for purposes of Title I and Title II of ERISA to impose fiduciary duties on individuals or entities that make compensated recommendations related to the use of retirement assets to participants, beneficiaries and owners of qualified retirement plans and IRAs.Continue Reading BREAKING: DOL Expands Definition of Fiduciary under ERISA
Welfare Plan Class Action Litigation Underscores Importance of Minding Your Fiduciary Duties
As mentioned in our recent blog post, the recently filed class action lawsuit against Johnson & Johnson (Lewandowski v. Johnson & Johnson et. al., D.N.J., No. 1:24-cv-00671 (Feb. 5, 2024)) over alleged excessive prescription drug costs takes a new approach with respect to familiar claims of breach of fiduciary duty for failure to monitor plan costs. Instead of targeting retirement plan fiduciaries, who have been a common target of excessive fee litigation over the last several years, the Lewandowski plaintiffs take aim at the actions of welfare plan fiduciaries.Continue Reading Welfare Plan Class Action Litigation Underscores Importance of Minding Your Fiduciary Duties
Caution! Contents Hot: Key Benefits Issues to Watch During the Remainder of 2024
While the sweltering roil of temporary regulatory changes related to the COVID-19 pandemic may have cooled and the initial burst of SECURE 2.0 steam begins to dissipate, sponsors of employee benefit plans should keep their eyes on several hot button issues during the remainder of 2024 as these issues continue to percolate.Continue Reading Caution! Contents Hot: Key Benefits Issues to Watch During the Remainder of 2024
UPDATE: Planning for Open Enrollment? Note the ACA Affordability Threshold Drop
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
Let the Plan Speak: First Gag Clause Attestation Due December 31, 2023
By December 31, 2023, group health plans and health insurance issuers must submit an attestation to certify compliance with the “gag clause prohibition” under the Consolidated Appropriations Act of 2021 (CAA).Continue Reading Let the Plan Speak: First Gag Clause Attestation Due December 31, 2023
Tenth Circuit Rules ERISA Preempts Oklahoma PBM-Reform Law
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
2023 ERISA Welfare Plan Automatic Participant Disclosures Checklist
We recognize that many companies sponsor ERISA welfare benefit plans and will soon be undergoing their open enrollment process and issuing related participant communications. To assist with that process, we have prepared an Automatic Participant Disclosures Checklist for use during open enrollment and throughout the plan year. Note that some of these disclosures may be
Flexible Spending Accounts: Require Substantiation or Risk Disqualification
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