The United States District Court for the Eastern District of Pennsylvania, in Doe v. Independence Blue Cross, declined to dismiss a participant’s lawsuit claiming that a group health plan covered...
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SEC Speaks to Importance of Naming Convention
By Seth Gaudreau and Stephen Wilkes SEC Commissioner Crenshaw reminded us last year that, despite the poetic beauty of Shakespeare’s observation that, “A rose by any other name would smell as...
Court Upholds PBGC Denial of Special Financial Assistance to a Terminated Multiemployer Plan
By Israel Goldowitz In March 2021, Congress enacted the American Rescue Plan Act (ARPA), which authorized the Pension Benefit Guaranty Corporation (PBGC) to provide taxpayer-funded special financial...
The SEC Fires All Guns Against a Crypto Platform Plan Fiduciaries Should Take Note
By Kim Shaw Elliott The SEC announced November 20 that it has charged Payward Inc. and Payward Ventures, Inc. (together “Kraken”, an online crypto platform) with a litany of securities registration...
Developments on the ESOP Front
By Jon Schultze, Andrew Oringer and Barry Salkin Employee stock ownership plans (“ESOPs”) are retirement plans that provide employees with the opportunity to own stock of their employer. Congress...
The Retirement Security (Nee Fiduciary) Rule Rides Again
By Michael Schloss, Andrew Oringer, Barry Salkin, John Sohn and Stephen Wilkes Earlier this week, on October 31, 2023, the Department of Labor (the “Department”) rolled out its long anticipated new...
IRS Announces 2024 Cost-of-Living Adjustments Affecting Retirement Plans
By Ari Sonneberg The Internal Revenue Service announced cost-of-living adjustments affecting certain dollar limitations for pension plans and other retirement-related limitations for 2024 in Notice...
Prepare for Upcoming Changes to Defined Contribution Plans Long-Term, Part-Time Employees
The SECURE Act of 2019 (the “2019 Act”) and the SECURE 2.0 Act of 2022 (the “2022 Act”) made many significant changes to retirement plans and how they operate. Several provisions became effective...
IRS Announces PCORI Fee
IRS has released Notice 2023-70, which provides the “applicable dollar amount” for the Patient-Centered Outcomes Research Institute (“ PCORI” ) fee for plan years ending before October 1, 2024....
Massachusetts has Increased its Estate Tax Exemption to $2,000,000
By Regina Snow Mandl Massachusetts has raised the estate tax exemption from $1,000,000 to $2,000,000, retroactively to January 1, 2023. As a result, for decedents dying after 2022 who have a...
CMS Announces Medicare Part A Deductibles and Part B Premiums for 2024
The Centers for Medicare & Medicaid Services (“CMS”) has announced the 2024 premiums, deductibles and coinsurance amounts for the Medicare Part A and Part B programs. Medicare Part A covers...
IRS Issues Notice Providing Relief to Taxpayers Affected by Recent Terroristic Actions Against Israel
By Michael Schloss On October 13, 2023, responding to the terroristic action in the State of Israel that began on October 7, 2023, the Department of the Treasury and the Internal Revenue Service...
IRS Notice on Treatment of Leave-Based Donation Programs
In response to an extreme need for charitable relief by victims of the Hawaiian wildfires that began on August 8, 2023, the IRS has issued Notice 2023-69 (the “Notice”) to provide guidance under the...
Participant May Receive Monetary Damages for Plan’s Failure to Approve Procedure
In Rose v. PSA Airlines, Inc., the Fourth Circuit Court of Appeals ruled that a self-funded group health plan may be sued for monetary damages for failure to approve a medical procedure for a plan...
Court Rules ERISA Preempts Oklahoma Law Regulating PBMs
The U.S. Court of Appeals for the Tenth Circuit, in Pharmaceutical Care Management v. Mulready, has ruled that a state law regulating pharmacy benefit managers (“PBMs”) is preempted by the Employee...
Guidelines for Mental Health and Medical/Surgical Claims Need Not Be Identical
The U S District Court for the District of Utah has ruled, in L.D. v. United HealthCare, that a group health plan does not violate the Mental Health Parity and Addiction Equity Act (“MHPAEA”) if it...
COBRA Notice Need Not Be Single Notification
In deciding Bryant v. Walgreen Co., the U.S. District Court for the Northern District of Illinois addressed several important aspects of the COBRA notification requirements. Law. Employers must...
Highlights of 2023 PBGC Meeting With ABA’s Joint Committee on Employee Benefits
By Harold Ashner and Israel Goldowitz On September 11, 2023, the American Bar Association (“ABA”) posted a summary of the May 3, 2023, meeting between representatives of the Pension Benefit Guaranty...
Claims Denial Overturned for Failure to Follow Claims Procedures
The U.S. Court of Appeals for the Tenth Circuit, in David P. v. United Healthcare Ins. Co., has reversed a group health plan’s benefits claim denial because the plan’s claims administrator failed to...
IRS Delays Roth Catch-up Contribution Change to Defined Contribution Plans
By John Schultze and Barry Salkin One of the changes made by the SECURE 2.0 Act requires that catch-up contributions made by employees with FICA compensation from an employer sponsoring a 401(k),...
HHS Issues Warning About Online Tracking
The Office of Civil Rights (“OCR”) at the U.S. Department of Health and Human Services (“HHS”) and the Federal Trade Commission (“FTC”) have issued a letter, dated July 20, 2023 (the “Letter”),...
IRS Releases ACA Affordability Rates for 2024
The Internal Revenue Service has issued Revenue Procedure 2023-29 to implement the 2024 index adjustments for certain Affordable Care Act (“ACA”) contribution percentages used to determine...
IRS Issues Guidance on Taxation of Restricted Stock Units to Employees Working in United States and Abroad
By Barry Salkin In a global economy, it will frequently be the case that employees of multinational organizations will be employed in both the United States and abroad. In Chief Counsel Advice...
DOL Revises Medicaid/CHIP Model Notice
The Department of Labor (“DOL”) has released a revised Model Notice for employers to use to inform employees about the potential for them to receive state-provided premium assistance subsidies to...
Failure to Follow Claims Regulations Results in De Novo Review
The U.S. District Court for the Southern District of New York, in Rhodes v. First Reliance, has ruled that an insurer’s denial of a long-term disability (“LTD”) claim must be reviewed under the de...
Departments Consider Potential Safe Harbor for Nonquantitative Treatment Limitations under the Mental Health Parity and Addiction Equity Act Regarding Network Adequacy
By Dannae Delano, Roberta Casper Watson and Barry Salkin On July 25, the Departments of Treasury, Labor, and Health and Human Services (the “Departments”) issued proposed regulations and other...
Agencies Issue Proposed Regulations on Mental Health Parity Implementation
HHS, DOL and IRS (collectively, the “Agencies”) have jointly issued proposed regulations to provide guidance on the implementation of the requirements of the Mental Health Parity and Addiction...
CMS Recommends Extension of Special Enrollment for Individuals Losing Medicaid and CHIP
By Roberta Watson, Dannae Delano and Barry Salkin Employers frequently provide group health plan coverage for their employees through pre-tax contributions to a cafeteria plan. Elections under a...
Departments Issue Guidance on No Surprises Act and Limitations on Cost Sharing Under the Affordable Care Act
By Dannae Delano, Roberta Watson and Barry Salkin In FAQ Part 60, the Departments of Health and Human Service, Treasury, and Labor (the “Departments”) addressed limitations on cost sharing under the...
Danger Will Robinson, Esq. – A Cautionary Note to Lawyers Regarding Engagement Letters
Buried in the recent decision in Supercooler Technologies, Inc. v. The Coca Cola Company, No. 6:23-cv-187-CEM-RMN (M.D. Fl. July 17, 2023), is a set of circumstances that amount to a cautionary tale...
Plan Penalized for Failure to Follow Its Own Provisions
In Laake v. Benefits Committee, Western & Southern Financial Group Co., the U.S. Court of Appeals for the Sixth Circuit determined that the de novo standard of review applies where an employer’s...
IRS Issues Transitional Guidance for Required Minimum Distributions
By Jon Schultze and Barry Salkin In response to changes made by the SECURE 2.0 Act of 2022 (SECURE 2.0) to the required minimum distribution (“RMD”) rules of the Internal Revenue Code (the “Code”),...
Departments Propose Regulations on Short-Term Limited Duration Insurance and Indemnity Insurance Excepted Benefits
By Dannae Delano, Roberta Casper Watson and Barry Salkin On July 7, the Departments of Health and Human Services, Labor, and Treasury (the “Departments”) issued proposed regulations modifying the...
Significant Changes Made to IRS Employee Plans Compliance Resolution System
By Dannae Delano, Seth Gaudreau and Barry Salkin The SECURE 2.0 Act of 2022, Division T of Public Law No. 117-328 (“the Act”) includes dozens of provisions that affect retirement plans and...
Reservists Must Receive Paid Administrative Leave Benefits
In Myrick v City of Hoover, the U.S. Court of Appeals for the 11th Circuit has ruled that military reservists must be treated as if they were on paid leave for purposes of the Uniformed Services...
Plan May Exclude Certain Specified Emergency Services
The U.S. Court of Appeals for the Eighth Circuit has ruled, in Shafer v. Zimmerman Transfer, that a group health plan does not have to pay for emergency services specifically excluded by the plan...
IRS Issues HDHP Guidance for End of COVID Emergency Period
In response to the ending of the COVID-19 public health emergency and national emergency, the IRS has issued Notice 2023-37, which modifies its prior guidance on benefits relating to the testing and...
SEC’s Recent Marketing Rule Risk Alert Identifies Additional Areas of Focus During Compliance Examinations
By Seth Gaudreau and Stephen Wilkes On June 8, 2023, the Securities and Exchange Commission’s (“SEC”) Division of Examinations (the “Division”) published a risk alert (the “Risk Alert” - found here)...
IRS Releases Guidance Denying Favorable Tax Treatment to Certain Wellness Program Incentive Payments
IRS has released guidance, in the form of Chief Counsel Memorandum Number: 202323006 (the “Memorandum”), denying favorable tax treatment to wellness incentive program payments provided through...
DOL Provides Guidance About Holidays During FMLA Leave
The Department of Labor (“DOL”) has issued Opinion Letter FMLA 2023-2-A (the “Letter”) to clarify how the amount of leave used is calculated when an employee takes Family and Medical Leave Act...
Massachusetts Division of Insurance Provides Special Enrollment Period for Loss of COBRA Coverage
By Dannae Delano, Barry Salkin and Roberta Casper Watson As we have previously described in client alerts, the end of the National Emergency and the cessation of the outbreak period on July 10,...
Coverage Requirements for COVID-related Services Post-Public Health Emergency
The COVID-19 national emergency (“NE”) and public health emergency (“PHE”) officially ended on April 10 and May 11, 2023, respectively. The end of the emergencies provides group health plan sponsors...
IRS Announces 2024 HSA and HRA Limits
The IRS has announced the 2024 calendar year dollar limits for health savings account (“HSA”) contributions, the minimum deductible amounts and maximum out-of-pocket expenses for high deductible...
Employer Can Select Individuals Who Receive Severance Benefits
The U.S. Court of Appeals for the Seventh Circuit has ruled, in Carlson v. Northrop Grumman Severance Plan, that an employer can use its discretion to individually select which terminated employees...
The DOL Accepts a FAQ-Out and Rolls Over . . . for Now – Appeal of ASA v. DOL Is Abandoned
By Andrew Oringer It was reported yesterday, on May 15, 2023, that the U.S. Department of Labor (the “DOL”) has abandoned its appeal in American Securities Association [“ASA”] v. U.S. Department of...
Claims Appeals Procedures Must be in Formal Plan Documents
In Yates v. Symetra Life Insurance, the U.S. Court of Appeals for the Eighth Circuit has ruled that a life insurance beneficiary need not exhaust a plan’s claims appeals procedures when the plan...
The Pregnant Workers Fairness Act (PWFA): What Employers Need to Know Before Summer 2023
By Katherine Brustowicz and David Gabor Introduction: It has long been the law that Title VII, the Age Discrimination in Employment Act (ADEA), and the Family Medical Leave Act (FMLA) protect...
IRS Chief Counsel Discusses Cafeteria Plan Substantiation Rules
The IRS Office of Chief Counsel has issued Memorandum Number 202317020 (the “Memorandum”) to explain the substantiation rules for claims made under health and dependent care FSAs by means of six...
Government Plan Not Covered by ERISA
In Pue v. New Jersey Transit Authority, the U.S. Court of Appeals for the Third Circuit has dismissed an ERISA-based lawsuit because government plans are not covered by ERISA. Law. ERISA section...
TPA Subject to Nondiscrimination Rules
The Federal District Court for the Western District of Washington has ruled, in C.P. vs. Blue Cross Blue Shield of Illinois, that an insurer acting as a third party administrator (“TPA”) is covered...
Board Resolution Insufficient to Terminate Severance Pay Plan
The U.S. Court of Appeals for the Fourth Circuit has ruled, in Messer v. Bristol Compressors, that a Board of Directors resolution intended to terminate a severance pay plan was insufficient because...
Agencies Issue Guidance Regarding Effect of the End of the COVID-19 Public Health Emergency (PHE) and National Emergency (NE) on Benefits
By Barry Salkin, Dannae Delano and Roberta Casper Watson On January 31, 2020, the Department of Health and Human Services (HHS) declared that a nationwide public health emergency (PHE) had existed...
IRS Issues Guidance on Nonfungible Tokens (“NFTs”) in IRAs and Tax-Qualified Individual Account Plans
By Barry Salkin and Jon Schultze Unlike ERISA, the Internal Revenue Code (“Code”) places almost no restrictions on the manner in which plan assets of individual retirement plans or tax-qualified...
IRS Requires Most Employee Benefit Plans to File Forms Electronically
The IRS has issued final regulations that will require almost all employee benefit plan filings to be made electronically. Background. Generally, Applicable Large Employers are required to file...
IRS Provides Guidance on the Definition of “Medical Expenses”
The IRS has issued a series of Frequently Asked Questions (“FAQs”) to provide guidance as to whether certain costs related to nutrition, wellness, and general health are medical expenses that may be...
IRS Issues Proposed Regulations Regarding Use of Forfeitures in Tax-Qualified Plans
By Jon Schultze and Barry Salkin Some of the IRS regulations dealing with tax-qualified plans predate ERISA and subsequent federal tax legislation, and have become outdated. However, sometimes it...
SECURE Act 2.0 Modification to Controlled Group and Affiliated Service Group Requirements
By Jon Schultze and Barry Salkin One of the less-discussed provisions of the recently enacted SECURE Act 2.0 makes two changes to the “family attribution” rules under Section 414 of the Internal...
Departments Issue Guidance Requiring First Annual “Gag” Attestation by December 31, 2023
By Dannae Delano, Roberta Casper Watson and Barry Salkin The Consolidated Appropriations Act of 2021 (“CAA”) is the most significant compliance challenge for employer health plan sponsors since the...
DOL Distinguishes Between FMLA and ADA Rights With Regards to Required Overtime
The Department of Labor (“DOL”) has issued Opinion Letter FMLA 2023-1-A with regards to employees who have health conditions that prevent them from working more than 40-hours per week. DOL was asked...
FMLA Rights For Employees Who Telework
The Department of Labor (“DOL”), in Field Assistance Bulletin No. 2023-1 (“FAB”), has explained how to apply the eligibility rules under the Family and Medical Leave Act (FMLA) when employees...
Jury Must Determine “Comparability” Under USERRA
The U.S. Court of Appeals for the Ninth Circuit, in Clarkson v. Alaska Airlines, has determined that a jury must decide whether an employer offered “comparable,” non-military, paid leave, and was...
Was the DOL FAQed Out and Rolled Over? Second Court Rejects DOL’s Interpretation of ERISA’s Fiduciary Rule
By Andrew Oringer Two recent federal courts, in Carfora v. TIAA, No. 1:21-cv-08384 (S.D.N.Y. Sept. 27, 2022) and American Securities Association [“ASA”] v. U.S. Department of Labor, No....
DOL Announces Indexed Penalties for Health and Welfare Plans
The Department of Labor (“DOL”) has announced the inflation-adjusted penalties for certain health and welfare plan violations. The new amounts are effective for penalties assessed after January 15,...
Who’s Liable When a Plan Participant is a Victim of Identity Theft
By Jordan Mamorsky and Barry Salkin Because of the scarcity of case law and regulatory guidance on the issues, any case that analyzes the liability of ERISA plan sponsors and service providers...
Only One Notice Required for Intermittent FMLA Leave
The U.S. Court of Appeals for the Sixth Circuit, in Render, v. FCA US, LLC, has ruled that only one FMLA-qualified notice is required from an employee for intermittent FMLA leave. Law. The FMLA...
Proposed IRS Regulations Would Make Permanent the Availability of Remote Spousal Consent Elections
By Barry Salkin Longstanding Internal Revenue Service (“IRS”) regulations with respect to spousal consent to a waiver of benefits require an election to be witnessed in the physical presence of a...
2024 ACA Out-of-Pocket Limits
The U.S. Department of Health and Human Services (HHS) has announced the inflation-adjusted maximum out-of-pocket (OOP) limits that will apply to non-grandfathered plans for plan years beginning in...
Congress Enacts Respect for Marriage Act
By, Barry Salkin, Roberta Watson and Jon Schultze n the ordinary course, we would not be advising clients that a statute that a Supreme Court held unconstitutional nine years ago was being removed...
ERISA Group Health Plan’s Self-Help Provision is Enforceable
The Ninth Circuit Court of Appeals, in Mull v. Motion Picture Industry Health Plan; Board of Directors of Motion Picture Industry Health Plan, has determined that an ERISA-covered group health plan...
DOL Rule Permits Consideration of Climate and ESG Factors and Codifies Proxy Voting Responsibilities
By Stephen Wilkes, Izzy Goldowitz and John Sohn On November 22, 2022, the Department of Labor (“DOL”) issued a final rule modernizing and revising the long-standing Investment Duties Regulation....
Secure Act 2.0 Brings a Litany of Retirement Changes
By Roberta Watson, Barry Salkin and Alex Olsen The SECURE Act 2.0 of 2022 (“SECURE 2.0”, or the “Act”) became law as part of the Consolidated Appropriations Act of 2023. SECURE 2.0 builds on the...
IRS Publishes Registered Apprenticeship Guidance
By Stephen Wilkes and Seth Gaudreau On November 30, 2022, the Internal Revenue Service (“IRS”) and the Department of the Treasury (“Treasury”) published Notice 2022-61 (the “Notice”) in the Federal...
Federal Agencies Issue Group Health Plan Guidance
By Roberta Watson, Barry Salkin and Dannae Delano On December 23, 2022, new guidance applicable to group health plans was issued by federal agencies, as described more fully below. The Center for...
IRS Finalizes Delayed Effective Dates for ACA Filing Requirements
In past years, the IRS has extended the deadlines for employer and group health plan Affordable Care Act (“ACA”) reporting. In lieu of the deadline extensions, the IRS has now issued final...
Trade Association’s Insurance Program Not Covered by ERISA
Ninth Circuit Court of Appeals has ruled, in Steigleman vs. Symetra Life, that neither an employer nor its trade association created an ERISA-covered plan merely because the employer paid for long...
Pre-existing Condition Exclusion Enforceable Despite Employer Misrepresentation
The Fifth Circuit Court of Appeals, in Bunner v. Dearborn Nat’l Life Ins. Co., has held that a disability insurer properly denied a claim for long-term disability (“LTD”) benefits based on the...
Plan Administrators May Not Adopt Rationales for Benefit Denials Not Raised During the Claims Review Process
The Ninth Circuit Court of Appeals, in Collier v. Lincoln Life Assurance Co. of Boston, has held that when a district court engages in a de novo review of an ERISA plan administrator’s denial of...
DOL “Clarifies” Guidance on the Bonding Requirements to PEPS and Their Pooled Plan Providers
By Stephen Wilkes, Seth Gaudreau and Susan Rees A recent Information Letter from Eric Berger, Chief, Division of Coverage, Reporting and Disclosure, in the Office of Regulations and Interpretations...
IRS Announces Increase in PCORI Fee
The IRS has released Notice 2022-59 to announce the “applicable dollar amount” for the Patient-Centered Outcomes Research Institute (“PCORI”) fee for plan years ending before October 1, 2023....
Department of Labor Proposes Updates to the Voluntary Fiduciary Correction Program
In 2002, the Employee Benefits Security Administration (“EBSA”) of the Department of Labor (“DOL”) established the Voluntary Fiduciary Correction Program (“VFCP”), a free program designed to...
IRS Announces Expansion of Change in Status Rules for Cafeteria Plans
One of the basic rules under which cafeteria plans operate is that elections are irrevocable except in certain limited circumstances. Further, even when those limited circumstances apply, the change...
The Wagner Law Group Signs Letter to Congress on Crucial HSA Issue
During the pandemic, Congress allowed telehealth services to be provided to HSA-eligible individuals without cost-sharing and without regard to whether they had met their deductibles under their...
IRS to Permit Determination Letters in Limited Circumstances for Individually Designed Code Section 403(b) Plans
Historically, an important element of compliance for tax-qualified plans under Code Section 401(a) or 403(a) was the submission of a request for a favorable determination letter on the form of the...
New IRS Regulations Resolve “Family Glitch” Issue
The IRS has issued final regulations amending the Affordable Care Act (“ACA”) rules regarding eligibility for the law’s premium tax credit (“PTC”). The new rules provide that the “affordability” of...
Despite TPA’s Contractual Obligation, Employer May Still Be Liable for COBRA Notice Violation
An Alabama district court, in Howard v. Ivy Creek of Tallapoosa, LLC, has held that an employer could not avoid liability for failing to provide a COBRA election notice to a plan participant at the...
Independent Review Prevents “Cat’s Paw” Liability in FMLA Retaliation Claim
The Tenth Circuit Court of Appeals, in Parker v. United Airlines, Inc., has held that the “cat’s paw” theory of liability for FMLA retaliation or interference claims does not apply if the employer...
IRS Releases 2023 Welfare Benefit Plan Limits
The IRS has released Revenue Procedure 2022-38, which sets forth the 2023 inflation-adjusted limits for certain employee welfare benefit plans and the dollar amounts used for certain discrimination...
IRS Issues Important Guidance with respect to Required Minimum Distribution Regulations
By Jon Schultze and Barry Salkin The SECURE Act made significant revisions to the required minimum distribution rules under Internal Revenue Code (“Code”) Section 401(a)(9) that apply to defined...
Agencies Request for Comments on Issues Related to New Disclosures Under the No Surprises Act Indicate the Importance of Informing Marginalized Populations and Maintaining Privacy of Advance Health Care Information
By Roberta Casper Watson, Dannae Delano and Barry Salkin It should come as no surprise that most Americans do not have the information available to them that is necessary to make informed decisions...
IRS Announces 2023 Cost-of-Living Adjustments Affecting Retirement Plans
By Ari Sonneberg The Internal Revenue Service announced cost-of-living adjustments affecting certain dollar limitations for pension plans and other retirement-related limitations for 2023 in Notice...
Court Finds Employer’s Evidence of COBRA Notice Mailing Procedures Insufficient
An Illinois federal district court, in Earl v. Jewel Food Stores, Inc., has concluded that an employer failed to show it made a good faith effort to provide a COBRA election notice to a terminated...
Insurer Must Make “Reasonably Proximate” Coverage Determinations
The U.S. Court of Appeals for the First Circuit has ruled, in Shields v. United of Omaha, that an insurer must make a coverage determination for a plan participant within a reasonable period of time...
Court Defers to Insurer’s Discretionary Authority
The Eleventh Circuit Court of Appeals, in Stewart v. Hartford Life & Accident Insurance Company, has upheld a lower court’s decision to deny a plaintiff’s appeal for long-term disability (“LTD”)...
Ninth Circuit Requires Lower Court to Consider New Evidence in LTD Suit
The Ninth Circuit Court of Appeals, in Kay v. Hartford Life and Accident Insurance Company, has reversed a lower court’s decision upholding an insurer’s termination of long-term disability (“LTD”)...
Federal Court Finds Key Part of ACA’s Preventive Service Mandate Unconstitutional
A Texas federal district court, in Braidwood Management, Inc. v. Becerra, has held that the Affordable Care Act’s (“ACA’s”) requirement that most group health plans and health insurers cover certain...
Department of Labor Updates Guidance on Independence of Qualified Plan Accountants
Plan sponsors of large employee benefit pension plans are familiar with the requirement of audited financial statements for annual reporting purposes. That requirement is discussed in the DOL’s...
“Probate Exception” Precludes Federal Jurisdiction over ERISA Lawsuit
The Sixth Circuit Court of Appeals, in American Electric Power Service Corporation v. John K. Fitch et al., has affirmed a district court’s dismissal of a group health plan’s ERISA action seeking...
Pay for Performance 2022: From Disclosure to Execution … to Retention
By Mark Poerio Tight labor markets tend to sharpen loyalty issues, as employers compete for an edge by which to retain — and motivate — their key employees. It does not take rocket science to defuse...
ERISA Lawsuit Time-Barred Due to Plan’s Limitations Period
The Eleventh Circuit Court of Appeals, in Bakos v. Unum Life Insurance Company of America, has upheld the dismissal of a lawsuit for wrongful denial of long-term disability (“LTD”) benefits because...
No Surprises in Agencies’ Reproposal of Independent Dispute Resolution Regulations on No Surprise Act Billing Arbitration
By Danae Delano, Roberta Watson and Barry Salkin Last November, we published a law alert regarding the first two rounds of regulatory guidance on the No Surprise Billing portion of the Consolidated...
SEC Provides Further Guidance in its Staff Bulletin: Standards of Conduct for Broker-Dealers and Investment Advisers Conflict of Interest
By Stephen Wilkes and Seth Gaudreau The U.S. Securities and Exchange Commission (“SEC”) recently published a Staff Bulletin (the “Bulletin”) providing further fiduciary standards guidance for...
Court Finds Employee-Paid LTD Policy Was Part of Employer’s ERISA Plan
A federal district court in the Middle District of Tennessee has held, in Insurance Company of America, that a long-term disability (“LTD”) policy offered under an employer’s group health plan was...
Inflation Reduction Act’s Impact on Group Health Plans
On August 16, 2022, President Biden signed into law the Inflation Reduction Act (“IRA”). The new legislation contains several provisions impacting group health plans. Below is a description of...
IRS Releases ACA Affordability Rates for 2023
The Internal Revenue Service has issued Revenue Procedure 2022-34 to implement the 2023 index adjustments for certain Affordable Care Act (“ACA”) contribution percentages used to determine...
Department of Labor (“DOL”) Proposes to “Update” QPAM Exemption
One of the most frequently used of the prohibited transaction class exemptions is Prohibited Transaction Class Exemption 84-14, which provides an exemption for Qualified Plan Asset Managers (the...
Agencies Issue Guidance on Contraception Coverage Requirements
The Department of Labor, Department of Health and Human Services, and the IRS (the “Agencies” ) have issued Frequently Asked Questions 54 (“FAQs”) regarding the contraception coverage requirements...
Employer Cannot Terminate Employee’s Vested Retiree Life Insurance Benefits
The U.S. Court of Appeals for the Fourth Circuit, in Bellon v. The PPG Employee Life, has ruled that an employer cannot terminate retiree life insurance coverage of employees for whom it had...
Wage and Hour Updates for Maine, New York, and New York City
By Katherine Brustowicz, David Gabor, Virginia Peabody I. Maine – Mandatory Vacation Payout Upon Separation from Employment Maine will follow Massachusetts’ lead in implementing mandatory vacation...
Multiemployer Plan Developments: PBGC Final Rule on Special Financial Assistance and Withdrawal Liability Actuarial Assumptions Litigation
By Dannae Delano and Israel Goldowitz On July 8, 2022, the Pension Benefit Guaranty Corporation (“PBGC”) issued its Final Rule (the “Final Rule”) implementing the American Rescue Plan Act of 2021...
ERISA World Awaits Next EBSA Move on Proposed Restrictions on the Prohibited Transaction Exemptions Process
It has been almost four months since the Employee Benefit Security Administration (EBSA) of the Department of Labor (“DOL”) published its proposed amendments to regulations for the procedures by...
HHS Issues Guidance on HIPAA Protections
In response to the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the U.S. Department of Health and Human Services (“HHS”) has issued new HIPAA...
IRS Announces Decreases in ACA Affordability Threshold and Increases in ACA Employer Shared Responsibility Penalties for 2022 Plan Years
The IRS has recently updated its Questions and Answers on Employer Shared Responsibility Provisions under the Affordable Care Act to reflect 2022 indexing adjustments for the ACA’s affordability...
Employer Responses to Overturning of Roe v. Wade
Many employers are considering how to respond to the recent ruling overturning Roe v. Wade, which has given states the leeway to outlaw abortion. Employers may have employees who are on either side...
Delay in Final Claims Appeal Determination Excuses Claimant from ERISA’s Exhaustion of Administrative Remedies Requirement
The Second Circuit Court of Appeals, in McQuillin v. Hartford Life & Accident Ins. Co., has ruled that a claimant exhausted his plan’s administrative remedies and was, therefore, entitled to sue...
Plan’s Lawsuit Deadline Not Enforceable Unless Communicated in Final Claims Denial
In two recent cases, a judge in the United States District Court for the District of Utah has ruled that, if an ERISA welfare benefit plan sets a time limit on when a claimant may file a civil...
Required Minimum Distribution Modifications Applicable to Defined Benefit Plans as Well
While most of the attention was on how the IRS’s proposed regulation would address tax-qualified defined contribution plans and IRAs, the IRS also took the opportunity to update the existing...
Employer Can Interfere with FMLA Rights Without Denying FMLA Leave
The United States Court of Appeals for the Seventh Circuit, in Ziccarelli vs. Dart, has ruled that an employer need not deny FMLA leave to an employee in order to interfere with his FMLA rights....
IRS Announces New Pre-Audit Compliance Pilot Program
Last week, the IRS announced via newsletter a new pre-audit compliance opportunity for employer-sponsored retirement plans selected for audit beginning immediately (the “Pilot Program”). Under the...
Interaction Between FMLA and Mental Health Conditions
The Department of Labor (“DOL”) has released Fact Sheet 280 (“Fact Sheet”) and a series of FAQs with regards to the interplay between the FMLA and mental health conditions. Law. Under the FMLA,...
IRS Provides Guidance on Leave-Based Donation Programs for Ukraine
The IRS has issued Notice 2022-28 (the “Notice”) to explain the tax treatment of employer leave-based donation programs to aid the people of Ukraine. The Notice begins by stating that the “invasion...
Small Employer Did Not Commit Itself to FMLA Leave Requirements
In Jones v. Wireless Time of Alabama, the U.S. District Court, Southern District of Alabama ruled that an employee was not entitled to FMLA leave despite the fact that her employer referred to the...
Insurer Breached Fiduciary Duty to Maintain Effective Benefit Enrollment System
The Eighth Circuit Court of Appeals, in Skelton v. Radisson Hotel Bloomington, has upheld a district court’s decision that an insurer acted as a fiduciary in determining eligibility and conducting...
Are Brokerage Windows an Effective Way of Limiting Fiduciary Risk After Hughes v. Northwestern?
In Hughes v. Northwestern University, 142 S.Ct. 737 (January 24, 2022), the Supreme Court held that fiduciaries to self-directed defined contribution retirement savings plans are responsible for...
IRS Announces 2023 Limits for HSAs, HDHPs and Excepted Benefit HRAs
The IRS has announced the cost-of living adjustments to the applicable dollar limits for health savings accounts (“HSAs”), high deductible health plans (“HDHPs”) and excepted benefit health...
Employers Act as Fiduciaries When Managing Premium Payments for Benefit Plan
The Sixth Circuit Court of Appeals, in Chelf v. Prudential Insurance Company of America, has determined that a district court erred in dismissing a claim for breach of fiduciary duty based on...
Longstanding IRS Administrative Practice Invalidated
When agencies take controversial regulatory actions, it can be anticipated that those actions will be challenged in federal district courts as soon as they become operative, if not before. In other...
IRS Proposes Change in Eligibility Provisions for ACA Premium Tax Credit
The IRS has issued a proposal that would amend the existing Affordable Care Act (“ACA”) regulations regarding eligibility for the law’s premium tax credit (“PTC”) to provide that the affordability...
IRS Issues Proposed Regulations for Required Minimum Distributions Under the SECURE Act
The SECURE Act (the “Act”) made two major changes to the required minimum distribution rules under Internal Revenue Code (“Code”) Section 401(a)(9): it extended the required beginning date for...
IRS Issues Proposed Regulation to Give SECURE Act MEPS “Bad Apple” Relief
On March 28, 2022, the IRS issued a notice of proposed rulemaking to add a new section - 26 CFR section 1.413-3 Special Rules for Section 413(e) Plans - to the Code of Federal Regulations (CFR). 87...
HHS Increases Civil Monetary Penalties for Certain HIPAA and ACA Violations
The Department of Health and Human Services (“HHS”) has published updated civil penalties. The new penalty amounts, which became effective March 17, 2022, apply to violations occurring on or after...
Massachusetts, Pennsylvania and New Jersey Taxpayers Beware
Massachusetts, Pennsylvania and New Jersey Taxpayers Beware: Don’t Let a Mismatch between Your State’s Tax Laws and the Federal Rules for Deducting Contributions Result in Overpaying Your State Tax...
Firing After FMLA Leave Did Not Violate FMLA
The Seventh Circuit Court of Appeals, in Anderson v. Nations Lending Corporation, has ruled that an employer’s decision to terminate an employee after returning from FMLA leave did not violate the...
Ninth Circuit Finds Welfare Plan Did Not Abuse Its Discretion In Denying Benefits
The Ninth Circuit Court of Appeals, in Alves v. Hewlett-Packard Comprehensive Benefits Plan, has found that a welfare benefit plan’s claims administrator did not abuse its discretion in denying a...
President Continues COVID Extensions
Reasoning that “the COVID-19 pandemic continues to cause significant risk to the public health and safety of the Nation,” President Biden has extended the COVID-19 National Emergency, which was...
Employer’s Recertification Requirement Doesn’t Interfere with Employee’s FMLA Rights
The U.S. Court of Appeals for the Eighth Circuit, in Whittington v. Tyson Foods, Inc., has concluded that an employer may require recertification of an employee’s need for leave under the Family and...
Mandatory Arbitration Prohibited for Sexual Harassment Claims
On February 7, 2022, the House passed H.R. 4445, three days later the Senate also passed the measure, and President Biden has just signed the bill into law. H.R. 4445, titled Ending Forced...
IRS Releases Revised Guidance on Medical and Dependent Care Expenses
The IRS has released the 2021 editions of Publication 502, “Medical and Dental Expenses” and Publication 503, “Child and Dependent Care Expenses.” Publication 502 (“Pub. 502”). Pub. 502 defines...
409A Checklist for Employment Agreements
It has been over 15 years since Congress enacted Internal Revenue Code §409A, and compliance has become generally routine for traditional deferred compensation and other non-qualified plans. Most...
Employer Must Provide Retroactive Coverage and Pay Penalties for COBRA Election Notice Violations
The U.S. District Court of Michigan, in Buford v. General Motors, L.L.C., has concluded that an employer’s conduct violated COBRA election notice requirements and warranted the imposition of...
FMLA-Eligible Employee May Be Terminated for Violating Employer’s Leave Policy
In Koch v. Thames Healthcare Group, the United States Court of Appeals for the Sixth Circuit has ruled that an employee may be terminated for violating her employer’s leave policy despite the fact...
DOL “Clarifies” Guidance on Private Equity Investments In Defined Contribution Plans
It has been a frequently stated observation that the policy position of the Department of Labor (“DOL”) on pension issues may vary a bit with the party occupying the White House. A recently issued...
Tax Court Rejects Aggressive IRA Strategy
View Printable PDF In recent years, the IRS has paid increased attention to what it regards as impermissible uses or operation of individual retirement accounts (“IRAs”). The recent Tax Court case...
Insurer Cannot Terminate LTD Benefits Without Additional Information
The United States Court of Appeals for the Eighth Circuit has determined, in Roehr v. Sun Life Assurance Co. of Canada, that long term disability (“LTD”) benefits cannot be terminated by an insurer...
SEC Expects to Focus on Cybersecurity in 2022
The U.S. Securities and Exchange Commission (“SEC”) has focused on cybersecurity under the Biden administration and it is expected to be one of its top priorities for the coming year. The SEC’s...
SEC Extracts $96M Settlement from TIAA Subsidiary for Rollover Practices – This is Only the Beginning
The Securities and Exchange Commission (“SEC”) beat the Department of Labor (“DOL”) to the punch and announced a major settlement with a broker dealer arising from its rollover practices. In what is...
Rabbi Trusts – When to ask. What to get.
By Mark Poerio A recent Law360 headline brought rabbi trusts immediately to mind. It reads "Ex-Manufacturing Co. CEO Says He's Owed $4.4M in Benefits" (4/10/2019).* Litigation sprung because the...