News

Changes to benefits-related items from EBSA and from the Wage and Hour Division (WHD) from the Spring 2023 DOL Regulatory Agenda:

Added to Prerule Stage:

• [1210-AC23] SECURE 2.0 Reporting and Disclosure

Moved from Prerule to Proposed Rule stage:

• [1210-AC20] Worker Ownership, Readiness, and Knowledge
• [1210-AC21] Exemption for Certain Automatic Portability Transactions

Added to Proposed Rule Stage:

• [1210-AC24] Federal Independent Dispute Resolution Process Fees

Update to Proposed Rule: 

• [1210-AC02] "Conflict of Interest in Investment Advice" changed to "Retirement Security Rule: Definition of an Investment Advice Fiduciary"

Moved from Proposed to Final Rule stage: 

• [1210-AC13] Coverage of Certain Preventive Services under the Affordable Care Act
• [1210-AB64] Adoption of Amended and Restated Voluntary Fiduciary Correction Program

Changes from the Spring 2023 IRS Regulatory Agenda:

Added to Proposed Rule stage:

• [1545-BQ87] Guidance Under Section 162(m)

Moved from Proposed to Final Rule stage:

• [1545-BQ28] Short-Term, Limited-Duration Insurance; Independent, Non coordinated Excepted Benefits Coverage; Level-Funded Plan Arrangements; and Tax Treatment of Certain Accident and Health Insurance
• [1545-BQ29] Mental Health Parity and Addiction Equity Act and the Consolidated Appropriations Act, 2021
• [1545-BQ57] Requirements in Connection With Coverage of Certain Preventive Services

Added to Final Rule stage:

• [1545-BQ94] Federal Independent Dispute Resolution Fees

"TPAs and PBMs hold virtually all of the information necessary to complete the analyses, but much of the details are kept as closely guarded secrets until the DOL requests the information. Accordingly, self-funded plan sponsors must be more assertive with their TPAs and PBMs to ensure [1] the analyses are completed, [2] the analyses are made available as required, and [3] that the analyses include all of the required detail, data, and elements[.]"

"Most service providers carefully maintain and continuously upgrade their cybersecurity practices and technology, but employers cannot afford to take this for granted. It must be on the employer's checklist to regularly seek satisfactory documentation, from all outside vendors, that plan data is secured as much as possible."

"[The DOL] must take action to prevent group health plans and their plan sponsors from subjecting themselves to liability for either [1] failing to submit an attestation or [2] submitting an incorrect attestation. The DOL can do this by issuing guidance delaying the December 31 attestation submission date. Alternatively, the DOL can announce a one-year non-enforcement period for those plans and their sponsors that believe -- in good faith -- that prohibited gag clauses are still present in their agreements."

15 pages. "The year 2023 ... peaked over the summer with the release of the long-anticipated proposed rules for non-quantitative treatment limitations under the [MHPAEA]. Regulators also issued ... proposed rules for fixed indemnity excepted benefits coverage and short-term, limited-duration insurance; privacy of reproductive health information; and investment fiduciaries.... [A] new proposed regulation was issued this fall after several court opinions disrupted the federal IDR process. The IRS quietly released a chief counsel memorandum confirming that the substantiation rules for account-based plans really do mean what they say they mean.... Congress introduced several bills this year aimed at regulating PBMs."

"[1] Gag clause prohibition compliance attestation (GCPCA): Due by December 31, 2023 ... [2] Expanded participant-level transparency in coverage (TiC): Starting January 1, 2024 ... [3] Prescription drug data collection (RxDC) report: Due by June 3, 2024 ... [4] Electronic filing required for ACA reporting in 2024 ... [5] Deadlines for ACA reporting in 2024 ... [6] Year-end Section 125 cafeteria plan action items."

176 pages. "The OIG remains concerned about [EBSA's] ability to protect the integrity of pension, health, and other benefit plans of about 153 million workers, retirees, and their families under [ERISA]. In particular, the OIG is concerned about the statutory limitations on EBSA's oversight authority and inadequate resources to conduct compliance and enforcement.... EBSA has limited legal authority to compel the Federal Retirement Thrift Investment Board to implement its recommendations, which includes enforcing its recommendations to improve the Thrift Savings Plan's cybersecurity posture."

"[State] reporting requirements basically fall into three categories: individual health coverage mandate reporting, health plan covered-lives assessment/surcharge payment/reporting, and other health plan-related reporting. ERISA arguably preempts some, but not all, state reporting requirements for GHP sponsors, but there are no current legal challenges to these employer mandates."

"The court determined that the participant had presented facts sufficient to show that the plan had applied its cosmetic procedure exclusion in a discriminatory manner. It explained that the facts alleged by the participant show that the plan's denial of coverage for the surgery was based, at least in part, on considerations of gender stereotypes and gender conformity or nonconformity." [Doe v. Indep. Blue Cross, No. 23-1530 (E.D. Penn. Nov. 21, 2023)]

"To furnish the forms electronically, employers must obtain the employee's affirmative consent specifically relating to receiving the Form 1095-C electronically. This approach, which is similar to the Form W-2 electronic distribution rules, is a more difficult standard to satisfy than the general ERISA electronic disclosure rules for plan materials."

"In 2024, pharmacy benefit managers in Michigan must begin applying for licenses and pay a $5,000 fee, according to new requirements the state's Department of Insurance and Financial Services unveiled this week.... Michigan's Pharmacy Benefit Manager Licensure and Regulation Act goes into effect on the first day of 2024 ... PBMs will need to apply for a third-party administrator certificate of authority, as well as for a PBM license[.]"

"Eligibility errors introduced during implementation can result in employees not getting the right benefits at the right time.... 'What if' scenarios challenge the standard operation of your platform by introducing rare, specific or nuanced situations ... Look at the full end-to-end spectrum and test how your requirements interact with each other in your system to avoid a domino effect when making changes to certain benefits.... Develop onboarding templates to help ensure there is no missing information when adding new employees to your system."

"During open enrollment season, an AI platform could send out personalized reminders and help employees learn about their benefits.... Employers can use AI to sift through employee data ... and make recommendations for all kinds of benefits applications.... A chatbot could potentially answer basic questions about benefits and be used during onboarding for new employees or for all employees throughout the year.... What are the risks?"

"[1] Long-term part-time administrative changes ... [2] SECURE 2.0 Optional changes.... [3] Pre-approved plans with discretionary match ... [4] Qualified retirement plan routine year-end maintenance ... [5] Gag clause prohibition compliance ... [6] [MHPAEA] comparative analysis ... [7] Cafeteria plan 'family glitch' amendment."

"All group health plans, whether fully insured or self-insured, are required to submit an attestation to [CMS] confirming that the plan has been compliant with the prohibition on gag clauses since December 27, 2020. This must be completed by December 31, 2023, and annually thereafter. Plans are permitted to contract with their TPA or carrier to complete the gag clause reporting on behalf of the plan."

"By December 31, 2023, all health plan sponsors must file their first 'gag clause' attestation. By January 1, 2024, health plans must provide information about rates and cost sharing for all healthcare items and services via a publicly available online tool."

"[CMS] publishes the Individual Coverage Health Reimbursement Arrangement (ICHRA) Employer Lowest Cost Silver Plan (LCSP) Premium Look-up Table to help stakeholders access individual market Qualified Health Plans LCSP premium data by geographic location. The ICHRA Employer LCSP Premium Look-up Table contains data from states with Federally-facilitated Exchanges and State-based Exchanges on the Federal Platform.... This data dictionary describes the variables contained in ICHRA Employer LCSP Premium Look-up Table." [Also available: 2024 ICHRA Employer Lowest Cost Silver Plan Premium Look-up Table (XLSM)]

"[This update] explores [1] a decision ordering an IME prior to a ruling on summary judgment motions, [2] the extent claims reporting records can be sealed, [3] the scope of ERISA preemption in the context of removal, and [4] two decisions awarding summary judgment for the defendant despite the plaintiffs having received disability benefits for several years prior."

"[In a recent survey of employers, almost] three-fourths of respondents indicated that they have taken notice: 28% said they have recently reassessed their welfare plan oversight and fiduciary responsibilities and another 43% plan to do so in the near future.  ... [A]bout half of respondents conduct regular medical claim audits (or have one planned for 2024), which can help identify overpayments and other problems with provider reimbursement."

"Two FAQs address IDR batching, while a third addresses the [ACA] requirement to provide certain notices in a culturally and linguistically appropriate manner."

"[To] state a claim under MHPAEA, [the court said] a plaintiff must: [1] Plausibly allege that the relevant group health plan is subject to MHPAEA. [2] Identify a specific treatment limitation applied to MH/SUD benefits covered by the plan. [3] Identify M/S benefits covered by the plan that are analogous to the MH/SUD care for which the plaintiff seeks benefits. [4] Plausibly allege a disparity between the treatment limitation on the MH/SUD benefits as compared to those placed upon the analogous M/S benefits." [E.W. v. Health Net Life Ins. Co., No. 21-04110 (Nov. 21, 2023)]

"The 2024 cost-of-living adjustments (and the changes from 2023) for these plans, from Rev. Proc. 2023-23 and Rev. Proc. 2023-34 are summarized in [a] table."

"The final rule affirms the requirement that contractors annualize contributions to fringe benefit plans and also provides a safe harbor for defined contribution pension plans (DCPPs) from the annualization requirement without the need to request and have the exception approved by the DOL's Wage and Hour Division (WHD). The final rule also details specific examples of circumstances under which a contractor may take credit for costs directly related to the administration of a fringe benefit plan.... The final rule updating the DBRA took effect on October 23, 2023."

"[P]lans must provide participants and beneficiaries with out-of-pocket cost estimates via a user-friendly online self-service tool (and by paper upon request).... [T]he first phase of the price comparison tool required the first 500 items and services to be published ... effective for plan years beginning on or after January 1, 2023, and the second phase will require all other services covered by the plan to be included ... effective for plan years beginning on or after January 1, 2024."