10th Circuit Invalidates Plan’s Arbitration Term

February 2023|

In the last several years, courts have grappled with ERISA plan terms that require participants to arbitrate their claims on an individual basis. Recently, the 10th Circuit invalidated a plan’s arbitration term in Harrison v. Envision Management Holding because it would have restricted the statutory ERISA remedies participants were otherwise entitled to seek.

Summary of Key Changes Under SECURE Act 2.0

February 2023|

The SECURE 2.0 Act of 2022 (“SECURE 2.0” or “the Act”) was signed into law on December 29, 2022 as part of the Consolidated Appropriations Act of 2023. SECURE 2.0 builds on the Setting Every Community Up for Retirement Act of 2019 (the “SECURE Act”) and aims to modernize the retirement system, encourage additional retirement savings, and ease administrative requirements. Summarized below are the Act’s key provisions that apply to retirement plans (note that not all provisions of the Act are addressed). The first section of this bulletin covers changes that impact plan design, and the second covers changes that are more administrative in nature.

Legal Developments Impacting Health & Welfare Plans 2022 Year-End Update

February 2023|

In June, the Supreme Court ruled the Constitution does not guarantee a right to abortion, leaving states free to regulate them. This means state law may dictate coverage of abortions by insured health plans while ERISA plan sponsors may decide whether self-funded health plans will cover abortions. Limits on coverage will apply—for example, plans generally will not cover medical procedures that are illegal in the state where performed. Other issues remain open—for example, coverage of abortifacient drugs obtained out-of-state and reimbursement for out-of-state travel to obtain an abortion. Upcoming legislative sessions will likely produce additional laws.

Legal Developments Impacting Retirement Plans 2022 Year-End Update

February 2023|

Click here for a printer-friendly version. Congress passed the SECURE 2.0 Act of 2022, which has far-reaching impacts on retirement plans. See our separate article for additional information. Some investment houses now include bitcoin in their fund offerings for retirement plans. However, in 2022 the DOL issued guidance expressing serious concerns about the prudence of making cryptocurrency investments available to 401(k) plan participants. The DOL pointed to several factors which make cryptocurrency investments particularly troubling [...]

Recent Litigation on Exclusions of Gender Affirming Care

February 2023|

Click here for a printer-friendly version. Title VII of the Civil Rights Act prohibits employment discrimination on the basis of sex, and in June 2020, the Supreme Court ruled that this includes discrimination based on sexual orientation and gender identity.[1] The Court did not address sex discrimination in a health plan. Increasingly over the past few years, plaintiffs have filed lawsuits arguing that health coverage exclusions of gender affirming care (sometimes also called “gender transition” [...]

Seventh Circuit Confirms DOL’s Authority to Investigate Plan Service Provider’s Cybersecurity

February 2023|

Click here for a printer-friendly version. In Spring 2021, the DOL issued guidance to plans, recordkeepers, and participants on cybersecurity best practices to safeguard plan assets and personal information. Since then, the DOL has begun auditing plans’ cybersecurity practices and requesting documents such as cybersecurity policies, proof of service provider practices, and information on past breaches. A recent Court of Appeals case out of the Seventh Circuit, Walsh v. Alight Solutions LLC, confirms the DOL’s [...]

Legal Developments Impacting Health & Welfare Plans – 2021 Year-End Update

February 2022|

Click here for a printer-friendly version. Various regulations and guidance from the HHS, DOL, and the Department of Treasury (the Departments) address implementation of the surprise billing rules and transparency regulations under the Consolidated Appropriation Act, 2021 (CAA), which include a delay on enforcing certain requirements, such as advance explanations of benefits and prescription drug pricing disclosures. For more information on the enforcement delays, see our article. The Departments confirmed that plans may offer a [...]

Legal Developments Impacting Retirement Plans – 2021 Year-End Update

February 2022|

Click here for a printer-friendly version. In addition to COVID-19 relief provisions, the American Rescue Plan Act (ARPA) enacted in March provided funding relief for multiemployer and single-employer pension plans. The multiemployer plan relief includes: Estimated $90+ billion in financial assistance grants to plans projected to become insolvent by 2051 (using specialized actuarial calculations), Optional accounting adjustments to extend the period for recognition of recent investment losses, and Extensions of time for plans to complete [...]

Delayed Enforcement of Various Health Pricing Transparency Rules

February 2022|

  On August 20, 2021, the Departments of Labor, Health and Human Services, and the Treasury (collectively, “the Departments”) issued a series of FAQs on certain surprise billing and transparency provisions of the Consolidated Appropriations Act, 2021 (“CAA”) and the 2020 Transparency in Coverage regulations (“TiC”). Pursuant to the FAQs, enforcement of the following TiC and CAA deadlines is deferred or on hold for group health plans: Posting of three machine-readable data files [...]

Consolidated Appropriations Act, 2021

February 2021|

  On December 27, 2020, the Consolidated Appropriations Act, 2021Pub. L. No. 116-260, 134 Stat. 1,182 (2020). (the Act) was signed into law. The Act includes COVID-related and other provisions that impact health and retirement plans, including the following. Surprise Billing The Act includes the “No Surprises Act.” Effective for plan years beginning in 2022, health plans must apply in-network cost-sharing to out-of-network emergency services performed in an emergency department (without requiring [...]