NOTE: This post was originally written August 29, 2023, and was updated on September 27, 2023 and July 1, 2025.

Breaking News: On June 30, 2025, the U.S. Supreme Court announced that it will not review the Tenth Circuit panel’s decision in PCMA v. Mulready. On May 10, 2024, Glen Mulready, the Oklahoma Insurance Commissioner, asked the Supreme Court to review the case, and reverse the Tenth Circuit’s decision that ERISA preempted portions of Oklahoma’s Patients’ Right to Pharmacy Choice Act (as discussed below). Mr. Mulready argued that the Tenth Circuit’s decision was not consistent with the Supreme Court’s prior decisions and another appeals court opinion, creating a split among the Circuits. In connection with Mr. Mulready’s request, the Supreme Court asked the U.S. Solicitor General’s office to provide its view of the case on behalf of the government, which it provided on May 27, 2025. In its brief, the government asked the Supreme Court to deny any further review of the Mulready case, arguing that the ERISA preemption question did not warrant further review by the Supreme Court, because the Tenth Circuit correctly determined that the provisions of the Oklahoma law were preempted by ERISA. The Supreme Court’s denial of Mulready’s request for review is good news for self-funded ERISA plan sponsors, as it means that the Tenth Circuit’s ruling in favor of ERISA preemption remains in place.

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 delivered electronically under certain circumstances.

If you have questions regarding the information in this checklist or would like additional information regarding electronic delivery of notices, please contact any of the attorneys in our Employee Benefits Practice Group.

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.  

I recently provided insight for an article in Benefits Pro examining the Tenth Circuit ruling that certain state regulation of pharmacy benefit managers (PBMs) is preempted by ERISA.

Late last week, the Internal Revenue Service (IRS) issued guidance on Section 603 of the SECURE 2.0 Act with respect to catch-up contributions. The guidance includes a two-year administrative transition period – until 2026 – to implement the Roth catch-up contribution provisions under SECURE 2.0 and is in response to employer coalitions and industry groups who had voiced concerns about being able to timely implement those provisions.

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.