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<< Older News  |  July 6, 2020


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Editor's Pick The Next Chapter in the DOL's Fiduciary Rule Saga: Relief for Investment Advice Fiduciaries
Ropes & Gray LLP Link to more items from this source
[Guidance Overview]
July 2, 2020

"The DOL's pronouncement consists of [1] a newly proposed prohibited transaction class exemption that would be available for investment advice fiduciaries and [2] a technical amendment to reinstate the text of the DOL's 1975 investment advice regulation, which would eliminate any doubt regarding the removal of the 2016 Fiduciary Rule following the Fifth Circuit's order. [This article] summarizes the conditions of the Proposed Exemption and includes a high-level comparison of the proposal against the 2016 Fiduciary Rule."

Tags: Fiduciary Duties

Editor's Pick Notes from Meeting of Actuaries 'Intersector Group' with PBGC, May 28, 2020 (PDF)
American Academy of Actuaries, Conference of Consulting Actuaries, Society of Actuaries, and ASPPA College of Pension Actuaries [ACOPA] Link to more items from this source
July 2, 2020

9 pages. Topics include: Single-employer plans: 4062(e); Uncashed checks for missing participants in a plan termination; plan termination audits; reportable events and Early Warning Program; possible surge in funding waiver requests. Multiemployer Plans: Pending regulations on withdrawal liability; final rule for terminations and insolvencies; guidance on facilitated mergers; guidance on partitions; guidance on two-pool withdrawal liability methods. PBGC asked the Intersector Group about the ability of multiemployer plans to be able to handle an increase in costs related to a mandated cap on the actuarial interest rate assumption.

Tags: Multiemployer Plans  •  PBGC  •  Retirement Plan Administration

Editor's Pick Managing FFCRA 'Child Care' Leave During the Summer
Bryan Cave Leighton Paisner LLP Link to more items from this source
[Guidance Overview]
July 1, 2020

"While this entitlement creates the potential for employees to be on leave all summer (and mostly paid leave, at that: employers must play employees 2/3rds pay at employee's normal rate, subject to caps) there are a number of steps employers can take to effectively manage this leave. [1] Ensure the employee has a qualifying reason for leave, and document the reason ... [2] Evaluate whether flexible working arrangements may reduce the need for leave ... [3] Determine amount of available leave and track leave usage ... [4] Consider whether to require concurrent use of accrued paid leave ... [5] Consider whether an employee's FFCRA leave jeopardizes the viability of the business."

Tags: Coronavirus (COVID-19)  •  FFCRA  •  FMLA and Other Leave

Editor's Pick The 403(b)ill of Rights
403bwise Link to more items from this source
June 29, 2020

"[1] School districts must offer access to at least one quality, low-cost vendor.... [2] Anyone selling K-12 403(b) product must sign a Fiduciary Pledge ... [3] Unions must cease accepting 'donations' or any other financial support from financial institutions that sell 403(b) products to their members.... [4] Vendors must supply a clear breakdown of all fees.... [5] Employers must provide objective plan information and 403(b) education to employees, especially new hires.... [6] Plans should contain a manageable number of quality vendors.... [7] Benefits administrators must possess 403(b) training and knowledge.... [8] Sales agents must be banned from K-12 campuses.... [9] The 403(b) plan should be known as just that: the 403(b) plan.... [10] Every school employee should have access to a quality, low-cost 457(b) plan."

Tags: 403(b) Plans and Annuities  •  Fiduciary Duties  •  Retirement Plan Policy

Editor's Pick Colorado Passes Law Requiring Employers to Provide Three Types of Paid Sick Leave
Littler Link to more items from this source
[Guidance Overview]
June 29, 2020

"[T]he Healthy Families and Workplaces Act (HFWA) [will] require all Colorado employers to provide three types of paid sick leave: [1] COVID-19 emergency paid sick leave (CO-EPSL); [2] Paid sick and safe time (PSST); and [3] Public health emergency paid sick leave (PHEL).... [C]ertain provisions will not take effect until 2021 or 2022, depending on how many employees an employer has.... [T]his built-in tripartite law would be the first of its kind."

Tags: Coronavirus (COVID-19)  •  FMLA and Other Leave  •  Local Regulation

Editor's Pick Federal Judge Upholds HHS' Hospital Transparency Rule as U.S. Healthcare Moves One Step Closer to Real Price Disclosure
Benefit Revolution Link to more items from this source
June 29, 2020

"Does anyone else find it peculiar that it is not too burdensome to negotiate thousands of different reimbursements from tens of different carriers every couple of years and memorialize those understandings in hundreds of pages of contracts -- but it is too burdensome to publish those prices to the public? The Court ruled that it was within [HHS'] scope to require the disclosure of these negotiated rates.... [The author fully expects] the ultimate implementation of this rule to supercharge the use of Referenced Based Pricing, Health Savings Accounts and Individual Coverage Health Reimbursement Accounts[.]" [American Hospital Ass'n v. Azar, No. 19-3619 (D.D.C. Jun. 23, 2020)]

Tags: Health Plan Costs  •  Health Plan Policy

Editor's Pick Brief of Respondent States to Supreme Court: Entire ACA Should Be Invalidated (PDF)
State of Texas, 23 Other States Link to more items from this source
June 26, 2020

66 pages. "In the end, petitioners defend the ACA as good policy ... Not only are those policy arguments incorrect, but they miss the point. Policy considerations cannot create Article I power. The ACA contains an unconstitutional command that can no longer be saved as a tax. The ACA itself insists that its other major health-insurance reforms rise and fall with this unconstitutional command. And those reforms were the core of the ACA.... The policy merits of the ACA can neither save section 5000A nor sever what Congress expressly conjoined." [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

Tags: Health Plan Design  •  Health Plan Policy

Editor's Pick Brief of Federal Respondents to Supreme Court: Entire ACA Should Be Invalidated (PDF)
United States of America: U.S. Department of Justice [DOJ], U.S. Department of Health and Human Services [HHS], Internal Revenue Service [IRS] Link to more items from this source
June 26, 2020

82 pages. "The individual mandate no longer can be sustained as a valid exercise of Congress's Article I authority ... The Court upheld the mandate only by adopting a saving construction of 26 U.S.C. 5000A, characterizing the mandate as the predicate to a tax. But Congress has now eliminated the tax, removing the basis for that construction.... The individual mandate cannot be severed from the remainder of the ACA. Congressional findings incorporated into the ACA's text clearly indicate that Congress would not have adopted the guaranteed-issue and community-rating provisions absent the individual mandate's requirement to purchase insurance ... The ACA's remaining provisions are likewise inseverable, because it is evident that Congress would not have enacted them without the individual mandate and the guaranteed-issue and community-rating provisions.' [California v. Texas, No. 19-840; Texas v. California, No. 19-1019 (cert. pet. granted Mar. 2, 2020)]

Tags: Health Plan Design  •  Health Plan Policy

Editor's Pick How Restaurant Menus Can Impact Retirement Savings Rates
Greenspring Advisors Link to more items from this source
June 26, 2020

"If you set the options at 8, 10, and 12 percent, there's a strong likelihood that a majority of people will enroll at 10 percent, choosing the middle option and avoiding the 'high priced' choice (i.e. 12 percent).... By choosing 10 percent, they are enrolling at a much higher percentage than the default and moving much closer (and faster) to the types of savings rate required for a successful retirement."

Tags: 401(k) Plans  •  Retirement Plan Administration  •  Retirement Plan Design

Editor's Pick Dividing Retirement Benefits at Divorce: Tips for Self-Represented Individuals (PDF)
Pension Rights Center Link to more items from this source
June 26, 2020

"At the time you're going through your divorce, retirement may be the last thing on your mind. However, retirement benefits are very valuable and can ensure your economic security in old age. It's important to know that you can ask for a share of your spouse's retirement benefit in your divorce."

Tags: Retirement Plan Information for Employees

Editor's Pick Fiduciary Exception to Attorney-Client Privilege for ERISA Plans (PDF)
Proskauer Rose LLP, via Lexis Practice Advisor Link to more items from this source
June 25, 2020

"This practice note explains the doctrine commonly referred to as the fiduciary exception to the attorney-client privilege.... [It] also explains how the fiduciary exception doctrine has been used to try to obtain communications ordinarily protected by the attorney work product doctrine. The principles outlined in this practice note can help employee benefits counsel and their clients better understand how best to protect the privacy of their communications and how to anticipate when these communications may be open to examination by plan participants."

Tags: Fiduciary Duties  •  Health Plan Administration  •  Retirement Plan Administration

Editor's Pick No More Section 1557 Nondiscrimination Notice
HUB International Link to more items from this source
[Guidance Overview]
June 23, 2020

"The two key takeaways for employers are [1] the onerous notice requirement is gone, but [2] nondiscrimination rules still generally apply.... [T]hese changes are expected to become effective on August 18, 2020. Therefore, between now and then, the notice is still required."

Tags: Health Plan Administration

Editor's Pick DOL Mental Health Parity Enforcement Fact Sheet Identifies Potential Issues for Health Plans
HUB International Link to more items from this source
June 23, 2020

"The [DOL] recently released its Mental Health Parity and Addiction Equity Act (MHPAEA) Enforcement Fact Sheet (and Appendix). These documents give glimpses of the kinds of issues the DOL is seeing. They can serve as a roadmap for employers to watch out for these same issues in their plans.... [1] Annual visit limits.... [2] Restrictive financial requirements.... [3] Restrictive visit limits for outpatient mental health and substance use disorder treatment.... [4] Limits for drug screening removed."

Tags: Health Plan Administration  •  Health Plan Design

Editor's Pick DOL's Final Alternative Electronic Delivery Rules for Pension Plans Permit Direct Delivery via Email
Cheiron Link to more items from this source
[Guidance Overview]
June 19, 2020

"The final rule continues to prohibit plan administrators or service providers from assigning the electronic address.... Unlike under the proposed rule, this special rule no longer permits an annual [notice of internet availability (NOIA)] to cover quarterly benefit statements.... [A] separate NOIA must be furnished for each quarterly benefit statement."

Tags: Retirement Plan Administration

Editor's Pick Considerations as Regulation BI and Form CRS Approach June 30 Compliance Date
Eversheds Sutherland Link to more items from this source
[Guidance Overview]
June 17, 2020

"SEC Chairman Jay Clayton has placed particular emphasis on good faith efforts to comply with Reg BI and Form CRS by the June 30, 2020 compliance date ... This [article] examines the recent regulatory developments related to Reg BI and Form CRS, sets forth a brief summary of the rules, and then concludes with several important considerations for broker-dealers and investment advisers as we close in on the June 30 compliance deadline."

Tags: Fiduciary Duties  •  Retirement Plan Investments

Editor's Pick Troubling Pattern of COVID-19 Workplace Litigation Begins to Emerge
Fisher Phillips Link to more items from this source
June 17, 2020

"As an increasing number of employees return to work, employers should be aware that a number of COVID-19-related lawsuits raising FMLA and ADA concerns have already begun to emerge. What do employers need to know in order to avoid being on the receiving end of such a claim?"

Tags: Coronavirus (COVID-19)  •  FFCRA  •  FMLA and Other Leave

Editor's Pick HIPAA Compliance for Work-from-Home or Telehealth Programs: Frequently Overlooked Considerations
Carlton Fields Link to more items from this source
June 17, 2020

"Complete a new HIPAA risk analysis.... Revise your policies accordingly.... Test your contingency plans.... Adjust your privacy notices and consents.... Make sure your contracts are compliant with applicable privacy laws."


Editor's Pick Potential COVID-19 Impacts on Health FSAs and Recent Health FSA Changes
Congressional Research Service [CRS] Link to more items from this source
[Guidance Overview]
June 16, 2020

"Health flexible spending arrangements (FSAs) are an optional benefit employers may offer that allow their employees to set aside money, on a tax-advantaged basis, to pay for certain out-of-pocket medical expenses. The rules of such arrangements may affect an individual's ability to use or modify their FSA in light of the [COVID-19] pandemic and corresponding recession. This [article] provides a brief overview of health FSAs and some potential ways that the COVID-19 pandemic may affect individuals with such arrangements. It concludes with a description of recent COVID-19-related executive branch and congressional activity around health FSAs." [IF11576, Jun. 15, 2020]

Tags: Cafeteria Plans  •  Coronavirus (COVID-19)  •  Health Plan Design

Editor's Pick How COBRA and Medicare Interact for Retirees
ABD Insurance & Financial Services Link to more items from this source
[Guidance Overview]
June 16, 2020

"There are four primary issues for Medicare-eligible employees to consider upon deciding if and when to elect COBRA after terminating employment.... [1] Medicare will pay primary ... [2] The eight-month Medicare Special Enrollment Period is not extended by COBRA enrollment ... [3] COBRA does not qualify to avoid Part B late enrollment penalties ... [4] Early termination of COBRA upon enrollment in Medicare."

Tags: COBRA  •  Medicare

Editor's Pick HHS Removes Gender Identity, Sex Stereotyping, Language Access Provisions from ACA Anti-Discrimination Rule
Katie Keith, in Health Affairs Link to more items from this source
[Guidance Overview]
June 15, 2020

"The final rule entirely eliminates: [1] The definitions section of the current rule (thereby eliminating definitions of key terms such as 'covered entity' and 'on the basis of sex'); [2] Specific nondiscrimination protections based on sex, gender identity, and association; [3] Major language access requirements (such as a requirement that covered entities include translated taglines on notices and significant communications to consumers); [4] Notice requirements that require covered entities to post information about Section 1557 and nondiscrimination at its locations and on its website; [5] Requirements to have a compliance coordinator and written grievance procedure to handle complaints about alleged violations of Section; and [6] Various enforcement-related provisions (such as protections against intimidation and retaliation)."

Tags: Health Plan Design  •  Health Plan Policy

Editor's Pick Don't Leave Eligible FFCRA Tax Credits on the Table
Frost Brown Todd LLC Link to more items from this source
[Guidance Overview]
June 15, 2020

"Employers can choose to pay employees on qualified leave more than the CARES Act provides, but the Credit cannot exceed those amounts. Employers that choose to pay more should consider whether it is more advantageous to count an employee's pre-tax salary reductions for health benefits as wages or as health plan expenses."

Tags: Coronavirus (COVID-19)  •  FFCRA  •  Health Plan Costs

Editor's Pick On Determining the Qualification of a Domestic Relations Order, with Examples
Ferenczy Benefits Law Center Link to more items from this source
June 12, 2020

"On a practical basis, it is critical that the DRO be written in a manner that permits the Plan Administrator to carry out the order without running the risk of a dispute about what was supposed to be paid to the alternate payee. Therefore, the Plan Administrator must review the DRO carefully to ensure that there are no ambiguities that could create a problem when the payments are made to the alternate payee. If there are ambiguities, the Plan Administrator may either advise the parties of its interpretation of the relevant language or ask that the parties clarify the language of the DRO."

Tags: QDROs  •  Retirement Plan Administration

Editor's Pick Impact of the SECURE Act on Retirement Security (PDF)
American Academy of Actuaries Link to more items from this source
June 11, 2020

10 pages. "The Act's mandated disclosure requirement for defined contribution (DC) plans will educate participants on how to make their assets last for their lifetimes by showing numerical examples of how much income might be derived from their account balances. The Act contains provisions intended to increase the number of DC plans offering annuity options. Utilizing annuity options can improve retirement outcomes for some participants, especially those without access to a defined benefit plan."

Tags: Retirement Plan Design  •  SECURE Act

Editor's Pick The PCORI Fee Returns: Due July 31 at Increased Rate of $2.54
ABD Insurance & Financial Services Link to more items from this source
[Guidance Overview]
June 10, 2020

"2019 was originally the final year PCORI fees were destined to be filed.... [U]nder the Further Consolidated Appropriations Act, 2020 ... the fee was extended for 10 more years, until 2029.... [T]he IRS has now released the fee for plan years ending on or after October 1, 2019 and before October 1, 2020, which includes 2019 calendar plan years that will report and pay the PCORI fee this July. The guidance also provides calculation transition relief for employers who may not have anticipated the need to identify the number of covered lives for plan years in that period."

Tags: Health Plan Administration  •  Health Plan Costs

Editor's Pick IRS Addresses Section 213 Medical Expense Deduction and Direct Primary Care Arrangements
Thomson Reuters Practical Law Link to more items from this source
[Guidance Overview]
June 10, 2020

"[A Direct Primary Care Arrangement [DPCA]) is a contract between an individual and a primary health care provider under which the provider agrees to furnish medical care for a set annual or periodic fee without billing a third party.... Under the proposed regulations, ... an HRA may reimburse DPCA fees.... For individuals in DPCAs, the type of coverage provided by the DPCA affects whether the individual is an eligible individual for purposes of the HSA rules under Code Section 223."

Tags: HRAs  •  HSAs  •  Health Plan Design

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