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Another Way to Spell 'Relief': E-P-C-R-S [Employee Plans Compliance Resolution System] (PDF)

Excerpt: The IRS is well aware that mistakes can and do happen. That's why the IRS has in place a system that lets you bring your plan back into compliance without losing its tax benefits: the Employee Plans Compliance Resolution System, or 'EPCRS'. EPCRS encompasses three distinct correction programs: 1) the Self-Correction Program; 2) the Voluntary Correction Program; and 3) the Audit Closing Agreement Program.

Significant Changes for Health Care Providers, Health Plans, Business Associates and Subcontractors in Final HIPAA Privacy Regs

"One of the most significant changes under the HITECH Act is that it makes Business Associates ('BAs') directly liable under certain provisions of the HIPAA privacy and security rules ('HIPAA Rules'). In addition, the Final Rule provides further guidance concerning which entities are BAs, resulting in the treatment of certain subcontractors of BAs as BAs themselves, directly subject to the HIPAA Rules."

Court Questions Insurer Behavioral Health Treatment Guidelines

"The plaintiff argued that care criteria developed by the American Psychiatric Association, or APA, were more consistent with accepted standards of medical care than the United Behavioral Health guidelines, but the insurance company disagreed. Although the court concluded there was nothing improper about the development of treatment guidelines by insurance companies, the court began by addressing a significant problem with the defendant's use of the United Behavioral Health, or UBH, guidelines[.]" [S.B. v. Oxford Health Insurance, Inc., No. 17-1485 (D. Conn. Nov. 5, 2019)]

When ERISA Preempts State Laws for Employee Benefits

"A recent appellate ruling ... addressed whether two Hawaii anti-subrogation statutes are pre-empted by ERISA.... Although the insurer's lien would have been preserved had a portion of the settlement been denominated as reimbursement for medical 'special damages,' that did not occur and the health insurer was left without a means of enforcing its claimed lien to recoup the money it had paid." [Rudel v. Hawai'i Management Alliance Association, Nos. 17-17395, 17-17460 (9th Cir. Sept. 11, 2019)]

Discretionary Clauses in ERISA Health and Disability Plans: Are They Still Viable? (PDF)

"As of 2015 ... nearly 25 states either have or are in the process of banning discretionary clauses in insurance policies subject to ERISA.... The Firestone decision made it clear that in the absence of an effective discretionary clause, a court deciding a benefit disputes utilizes the de novo standard of adjudication that favors neither party.... Plan insurers ... are expected to continue their opposition to the laws and argue that states run afoul of ERISA when they attempt to regulate the language in ERISA plans; however, the Supreme Court's refusal to hear an appeal from the Morrison ruling suggests that such efforts are unlikely to succeed."

New ERISA Disability Rules Look to Level Playing Field for All

"Besides requiring an explanation for disagreement with treating doctor opinions, the regulations speak to situations where the Social Security Administration issues an award of disability benefits while the benefit plan reaches a contrary determination. Although no deference to a favorable Social Security determination is required, the regulations obligate benefit plans to provide "a more detailed justification [for reaching a different conclusion] ... in a case where the SSA definitions were functionally equivalent to those under the plan."

DOL Issues Final Regs for Claims Procedure for Plans Providing Disability Benefits

"The keystone of the regulations ... is the requirement to allow the claimant to have the last word in the claims process and thus have the right to respond to adverse information developed during the claim appeal process.... The regulations are also intended to permit claimants to submit supporting evidence regardless of whether such evidence meets 'courtroom evidentiary standards.' "

Discretion and Preemption: Unraveling ERISA, State Insurance Law

"While the California federal court ... acknowledged the existence of the deemer clause, the court still found the California ban on discretionary clauses applicable based on a finding that '[S]ection 10110.6 applies to contracts.' But that finding directly conflicts with ERISA's preemption provision, which has federalized garden-variety disputes over health and disability benefits and removed claims relating to such benefits from the ambit of breach-of-contract actions even where such benefits are provided though insurance." [Thomas v. Aetna Life Ins. Co., No. 15-1112 (E.D. Cal. Aug. 15, 2016)]

Health Insurer's Three-Word Denial Brings Cold Shoulder from 2nd Circuit

"Although the court persuasively rejected the 'substantial compliance' doctrine, this ruling will undoubtedly trigger further litigation as to the meaning of 'inadvertent and harmless' noncompliance. The court could also have gone much further because the harm here is one that is typical (and frustrating) in health care -- summary denials lacking any explanation.... Obtaining a comprehensible explanation for a denial so that it can be effectively challenged is hard enough, but obtaining the so-called administrative record is often impossible." [Halo v. Yale Health Plan, No. 14-4055 (2d Cir. Apr. 12, 2016)]

ERISA Does Not Stand for 'Equitable Relief In Swollen Assets'

"The court thus rejected all of the respondent's arguments asserting a right to enforce its lien on Montanile's general assets, including its claim that it could enforce its lien under the 'swollen assets doctrine,' which ostensibly allows an equitable recovery from an individual whose assets had swollen due to receipt of the funds claimed to be subject to restitution.... Montanile will afford injured tort claimants greater leverage in negotiating liens, particularly in situations where liability insurance is limited and the claimant's recovery falls far short of make whole relief. Otherwise, overly aggressive demands for full reimbursement will backfire on the benefit plans because putative plaintiffs will forgo seeking recompense for personal injuries if the recovery ends up entirely or mostly in the hands of the health benefit provider."

Pension Obligations vs. Religious Exemptions: Does This Make Sense?

"Contrary to the [Medina v. Catholic Health Initiatives] court's concern that ERISA fiduciary duties may conflict with church doctrine on issues such as social investing, ERISA's rules are neutral and based solely on the intent that employers be held to their promises by imposing fiduciary obligations comparable to Judeo-Christian religious precepts. Favoring religiously affiliated plans over other nonprofit health-care plans thus raises a legitimate question under the establishment clause even if such plans are found to fit within the statutory 'church plan' definition."

State Health Care Database Laws vs. ERISA: Supreme Court to Decide

"The question in this case reviews whether or not states can require health care providers and health care payers to provide claims data and related information to the state's health care database.... [T]his case focuses on whether ERISA preempts the state's health care database law when applied to a third-party administrator of a self-funded plan." [Gobeille v. Liberty Mutual Ins. Co., (2d Cir. Feb. 4, 2014, oral arg. Dec. 2, 2015)]

DOL Proposes New Regs for Disability Benefit Claims

"One of the key additions to the regulations is a requirement giving the claimant the 'last word' in the appeal process.... The regulations require 'automatic' timely disclosure of the new evidence and an opportunity for the claimant to respond before the appeal decision deadline expires; and that if the response triggers another round of point/counterpoint, the claimant must be furnished with new evidence and given an opportunity to respond even if it means tolling the time to decide the appeal until the claimant responds."

PBM Trade Association Challenges Fiduciary Provisions of New California Law, Claiming ERISA Preemption

"PMCA's arguments in favor of ERISA preemption of the fiduciary standards provision for self-funded employer plans center around three main points: [1] It makes an impermissible reference to ERISA plans because it specifically references 'self-insured employer plans'; p2[ It regulates in a field already fully occupied by federal standards ... and [3] It requires plan sponsors to design or structure their plan in a particular way[.]" [Pharmaceutical Care Management Association v. Bonta, No. 26-0012 (C.D. Calif. complaint filed Jan. 2, 2026)]

District Court: Claim of Intentional Infliction of Emotional Distress is Narrow Enough to Avoid ERISA Preemption

"The governing rule is that so long as the claim could result in relief irrespective of the outcome of the ERISA claim, the plaintiff states a viable cause of action and is able to survive a motion to dismiss. However, if the claim is linked to or intertwined with the underlying ERISA claim such that the success or failure of the claim would depend on a favorable decision on the benefit claim, it will be pre-empted.... Here, the court ... [concluded] that the intentional infliction of emotional distress claim was not preempted. However, if [the participant] had alleged an entitlement to emotional distress damages solely on account of the claim denial or alleged consequential damages on account of a delay in processing his claim, such as asserting an eviction from his home due to the delay, such a claim would easily have been found pre-empted." [Kresich v. Metropolitan Life Ins. Co., No. 15-cv-05801 (N.D. Cal. Apr. 4, 2016)]

Text of DOL Final Regs: Definition of Employer Under Section 3(5) of ERISA -- Association Retirement Plans and Other Multiple-Employer Plans

135 pages. "This document contains a final regulation ... that expands access to affordable quality retirement saving options by clarifying the circumstances under which an employer group or association or a professional employer organization (PEO) may sponsor a multiple employer workplace retirement plan.... The final regulation does this by clarifying that employer groups or associations and PEOs can, when satisfying certain criteria, constitute 'employers' within the meaning of ERISA for purposes of establishing or maintaining an individual account 'employee pension benefit plan' within the meaning of ERISA. As an 'employer,' a group or association, as well as a PEO, can sponsor a defined contribution retirement plan for its members (collectively referred to as 'multiple employer plans' or 'MEPs' ...). Thus, different businesses may join a MEP, either through a group or association or through a PEO.   "The final regulation also permits certain working owners without employees to participate in a MEP sponsored by an employer group or association. The final rule primarily affects groups or associations of employers, PEOs, plan participants, and plan beneficiaries.... [It] may affect banks, insurance companies, securities broker-dealers, record keepers, and other commercial enterprises that provide retirement-plan products and services to ERISA plans and plan sponsors.... "This final regulation is effective [Sept. 30, 2019]."

The American Retirement Association: A New Name for an Expanding Mission

"For nearly half a century, the American Society of Pension Professionals and Actuaries (ASPPA) and its affiliated organizations have been working for America's retirement. As of today, it does so under a new name as broad and expansive as the members it represents: the American Retirement Association.... [T]he American Retirement Association is a nonprofit professional organization with two major goals: to educate all retirement plan and benefits professionals, and to create a framework of policy that gives every working American the ability to have a comfortable retirement.... The American Retirement Association is composed of four premier retirement industry associations: [1] the American Society of Pension Professionals & Actuaries (ASPPA); [2] the ASPPA College of Pension Actuaries (ACOPA) ; [3] the National Association of Plan Advisors (NAPA); and [4] the National Tax-deferred Savings Association (NTSA)"

Text of HHS Sample Business Associate Contracts under HIPAA Omnibus Rule

"This document includes sample business associate agreement provisions to help covered entities and business associates more easily comply with the business associate contract requirements. While these sample provisions are written for the purposes of the contract between a covered entity and its business associate, the language may be adapted for purposes of the contract between a business associate and subcontractor."

HIPAA/HITECH Omnibus Final Regs Include More Rules for Business Associates

"The Final Rule makes some of the obligations of the HIPAA Privacy and Security Rules directly applicable to business associates. It also includes 'subcontractors' in the definition for 'business associates,' requiring business associates to enter into written contracts with subcontractors that are substantially similar to business associate agreements. Significantly, business associates and subcontractors will be required to come into full compliance with the Security Rule by the September 23 compliance date."

May Health Plan Business Associates Disclose PHI Directly to Other Business Associates of the Same Plan? (PDF)

"PHI generally can be disclosed directly by one business associate to another business associate of the same covered entity without having to use the covered entity as a conduit or intermediary, so long as certain conditions are met."