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All News > Health Plan Policy

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How Two Fishing Boat Cases Pending at the Supreme Court Could Rock the Benefits Plan Boat
McDermott Will & Emery Link to more items from this source
Feb. 22, 2024

"If Chevron is overturned or significantly weakened, new DOL and US Department of the Treasury regulations featuring aggressive statutory interpretations (like the fiduciary rule) are likely to become rarer and more vulnerable to challenge.... [B]ecause employee benefits cases challenging agency actions have only rarely reached the Supreme Court, employee benefit cases may be especially affected by how lower courts apply the result of Loper Bright and Relentless, which in turn may vary by federal circuit and district court." [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm., No. 22-451 (S.Ct. transcript of oral argument Jan. 17, 2024); Relentless, Inc. v. Dept. of Commerce, No. 22-1219 (S. Ct. transcript of oral argument Jan. 17, 2024)]

Tags: Health Plan Policy  •  Retirement Plan Policy

Letter from State Attorneys General to Congress in Support of PBM Reform Legislation (PDF)
National Association of Attorneys General Link to more items from this source
[Opinion]
Feb. 22, 2024

"A small number of PBMs hold significant market power and are reaping abundant profits at the expense of the patients, employers, and government payors the PBMs are supposed to help.... While state law can provide the basis for oversight of and lawsuits against PBMs, States often face arguments by PBMs that federal jurisdiction and preemption limit states' authority to regulate PBMs.... Thus, the FTC and Congress must act to ensure fulsome regulation of PBMs nationwide."

Tags: Health Plan Policy  •  Prescription Drug Costs

Is the No Surprises Act Backfiring on Patients?
Wendell Potter NOW Link to more items from this source
[Opinion]
Feb. 19, 2024

"[T]he Biden Administration's regulations empowered insurers to set the QPA amount and then made it a 'rebuttable presumption' of payment in the arbitration -- meaning the QPA as determined by the insurer is just assumed to be appropriate and fair -- ignoring all other factors. This is not what lawmakers intended, but Secretary Becerra essentially ignored Congressional intent and rewrote the law in a way that enabled the health insurance industry to put its big thumb on the scale."

Tags: Health Plan Costs  •  Health Plan Policy

Circuit Courts Continue to Weigh in on Surcharge Remedy for ERISA Fiduciary Claims
Miller & Chevalier Link to more items from this source
Feb. 16, 2024

"According to the [Tenth Circuit], the district court abused its discretion because it treated Ms. Watson's Section 502(a)(3) claim for fiduciary breach as a Section 502(a)(1) claim to recover under the plan, when, in fact, '[t]hese provisions provide for distinct claims' ... In a footnote, the Tenth Circuit panel addressed EMC's argument that a surcharge award would, in essence, constitute 'compensatory damages' that are not recoverable under Section 502(a)(3)(B)'s catchall provision." [Watson v. EMC Corp., No. 22-1356 (10th Cir. Feb. 9, 2024)]

Tags: Health Plan Administration  •  Health Plan Policy

Impact on ERISA Regulation If Supreme Court Throws Chevron Deference Overboard
Morgan Lewis Link to more items from this source
Feb. 15, 2024

"Two current ERISA hot topics ... are the proposed Retirement Security Rule (the fiduciary rule) and the Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights rule (ESG rule). If the Court abandons or curtails the Chevron deference, ERISA regulations adopted by the [DOL] may be more heavily scrutinized, modified, or vacated by federal courts."

Tags: Health Plan Policy  •  Retirement Plan Policy

New York Enacts Prescription Drug Price Transparency Bill
Morgan Lewis Link to more items from this source
[Guidance Overview]
Feb. 15, 2024

"New York expanded its existing efforts at monitoring and understanding prescription drug prices by enacting legislation addressing prescription drug price transparency. Effective June 19, 2024, S.599-A/A.1707 amends the New York Insurance Law to require prescription drug manufacturers to report certain price increases before they occur."

Tags: Health Plan Policy  •  Local Regulation

District Court Ruling Clarifies ERISA's Lien Burden of Proof
DeBofsky Law Link to more items from this source
Feb. 14, 2024

"The court's ruling clarified that the party seeking to enforce its lien bears the burden of proving the existence of a fund over which a lien can be asserted, and also established the need to prove the ongoing existence of the funds at issue. Prior to this ruling, those issues were unsettled." [Verizon Sickness and Accident Disability Benefit Plan for New England Assoc. v. Rogers., No. 21-0110 (D.R.I. Jan. 29, 2024)]

Tags: Health Plan Policy

Flipping the Script on the New Excess Health Plan Fee Case Against Johnson and Johnson
Encore Fiduciary Link to more items from this source
[Opinion]
Feb. 8, 2024

"The highly detailed and lengthy complaint represents a groundbreaking attempt to turn plan sponsors into guarantors of the lowest possible fees for every drug or medical service offered by the plan.... If there is any victim of excess fees in health plans, the victim is the plan sponsor. If there is an culprit in health plan excess fees, it is the PBM or other service provider. Consequently, if there is any liability for excess fees, the liability should be borne by health care providers. And any liability damage recoveries should be returned to plan sponsors -- not to plaintiff lawyers or even participants." [Lewandowski v. Johnson & Johnson, No. 23-0671 (D.N.J. complaint filed Feb. 5, 2024)]

Tags: Health Plan Costs  •  Health Plan Policy  •  Prescription Drug Costs

House Committee on Education and the Workforce Seeks Feedback on ERISA
Miller & Chevalier Link to more items from this source
Feb. 1, 2024

"[On] January 22, the House Committee on Education and the Workforce issued an RFI on 'ways to build upon and strengthen ERISA' in the lead-up to the law's 50th anniversary in September. The Committee noted that employer-sponsored health insurance, as the core of the American healthcare system, has been heavily impacted by rising health costs, leading to higher premiums, reductions in benefits, and less coverage held by small businesses.... [T]he Committee seeks feedback on several issues to explore ways of increasing affordability of coverage and quality of care.... Responses to its RFI must be submitted by March 15, 2024."

Tags: Health Plan Costs  •  Health Plan Design  •  Health Plan Policy

House Subcommittee Hearing: Health Care Spending in the United States Is Unsustainable for Patients, Employers, and Taxpayers
Health Subcommittee, Energy & Commerce Committee, U.S. House of Representatives Link to more items from this source
Feb. 1, 2024

January 31, 2024. Video of hearing, with links to Chair Rodgers Opening Statement and Chair Guthrie Opening Statement and testimony by [1] Chapin White, Ph.D., Director of Health Analysis, Congressional Budget Office; [2] Sophia Tripoli, MPH, Families USA; [3] Mr. Kevin Lyons, New Jersey State Policemen"s Benevolent Association, Inc.; [4] Benedic Ippolito, Ph.D., M.S., American Enterprise Institute; and [5] Katie Martin, MPA, Health Care Cost Institute.

Tags: Health Plan Costs  •  Health Plan Policy

What to Expect from the States in 2024
Mercer Link to more items from this source
Jan. 29, 2024

"Key areas of focus.... [1] ERISA preemption.... [2] Prescription drugs.... [3] Paid leaves.... [4] Telehealth.... [5] Insurance coverage mandates.... Key action steps ... [1] Engage with peers, trade groups.... [2] Leverage vendor relationships.... [3] Keep your superiors informed."

Tags: ERISA Preemption  •  Health Plan Administration  •  Health Plan Design  •  Health Plan Policy  •  Local Regulation

House Committee Seeks Feedback from Employers on ERISA and Health Care System
HR Policy Association [HRPA] Link to more items from this source
Jan. 29, 2024

"The House Education and Workforce Committee is seeking input from employers on policies that will strengthen and protect ERISA and the employer-sponsored health care system. The committee is requesting information on how to update and strengthen ERISA and the employer-sponsored system particularly related to industry changes around data sharing, AI, and specialty drugs."

Tags: Health Plan Policy

Health Cost and Affordability Policy Issues and Trends to Watch in 2024
The Peterson-Kaiser Health System Tracker Link to more items from this source
Jan. 24, 2024

"Will policymakers pass site-neutral payment reforms? ... Will price transparency requirements drive down costs? ... How will prescription drug pricing policies affect health spending and affordability? ... What new policies might affect PBMs, the so-called prescription drug middlemen? ... How will new drugs and therapies impact health spending and outcomes? ... How will expansion of virtual care affect costs, access, and affordability? ... Will state cost control measures succeed at curbing spending?"

Tags: Health Plan Costs  •  Health Plan Policy  •  Prescription Drug Costs

ERIC Amicus Brief to the U.S. Supreme Court in United Behavioral Health
McDermott Will & Emery Link to more items from this source
[Opinion]
Jan. 24, 2024

28 pages. "May a court, at the invitation of an agency in an amicus brief, effectively amend regulations by judicial fiat, providing the agency with an end-run around the APA's notice-and- comment rulemaking procedures? The answer to that question is an obvious no. But the Tenth Circuit below disagreed, decreeing a new regulatory requirement for health-benefit denials that the [DOL], in dual 2015 and 2016 rulemakings, expressly considered and chose to adopt only for disability-benefit denials and not for health-benefit denials." [D.K. v. United Behavioral Health, No. 21-4088 (10th Cir. May 15, 2023; cert. pet. filed Nov. 29, 2023, No. 23-586)]

Tags: Health Plan Administration  •  Health Plan Policy

House Committee Seeks Input on Reforms to Employer-Provided Health Insurance (PDF)
Committee on Education and the Workforce, U.S. House of Representatives Link to more items from this source
Jan. 23, 2024

9 pages."As the 50th anniversary of ERISA approaches, the Committee is seeking feedback on ways to build upon and strengthen ERISA, the foundation of employer-sponsored health care.... Examining ways to increase affordability of coverage and increase quality and access to care, the Committee seeks feedback on the topics outlined [in this letter]. Please submit any responses ... by March 15, 2024." [Committee letter to Members of the Employee Health Benefits Community, Jan. 22, 2024]

Tags: Cybersecurity  •  Health Plan Costs  •  Health Plan Design  •  Health Plan Policy

Data Sharing, PBM Reforms and Transparency: Where We Stand in Early 2024
Benefitfocus Link to more items from this source
[Opinion]
Jan. 23, 2024

"We don't know if the Senate will take steps to approve the House's Lower Costs, More Transparency Act [HR 5378]. That means we do not know if the amendments to the Gag Clause Prohibition ... will ever make their way into the law.... We also don't know whether PBM reforms -- particularly S 1339 -- will be included in legislation to keep the government funded and/or other supplemental spending bills.... [We] don't know whether the requirement to share claims data for 'audit' purposes and/or any other Transparency provisions will find their way into the law during these upcoming legislative exercises."

Tags: Health Plan Costs  •  Health Plan Policy  •  Prescription Drug Costs

Supreme Court Appears Ready to End Deference to Federal Agency Expertise
Government Executive Link to more items from this source
Jan. 18, 2024

"The Supreme Court appears poised to strip away at least some of the discretion federal agencies enjoy in interpreting and implementing federal law after hearing challenges to a decades-old doctrine that the judicial branch should defer to the executive when provisions of law are unclear.... Chevron has long been considered one of the most significant precedents in administrative law and its reversal, even if only partial, could cause major disruptions in how agencies operate." [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm., No. 22-451 (S.Ct. transcript of oral argument Jan. 17, 2024); Relentless, Inc. v. Dept. of Commerce, No. 22-1219 (S. Ct. transcript of oral argument Jan. 17, 2024)]

Tags: Health Plan Policy  •  Retirement Plan Policy

Retirement Industry Eyes Supreme Court on Chevron Deference
Pensions & Investments Link to more items from this source
Jan. 16, 2024

"The Supreme Court holds oral arguments Jan. 17 on a challenge to the legal standing of regulatory agencies that could significantly alter the balance of power between regulators and federal courts.... [P]laintiffs say the justices should overrule or restrict Chevron deference across the board -- a prospect that would affect every acronym from EPA to NLRB, from SEC to IRS, from DOL to PBGC.... Critics say Chevron deference allows legislation via regulation, permitting regulatory overreach beyond the scope of the laws that regulators administer."

Tags: Health Plan Policy  •  Retirement Plan Policy

Justice O'Connor Was Architect of ERISA's Lasting Success
Fox Rothschild LLP Link to more items from this source
Jan. 15, 2024

"The Dec. 1 death of retired U.S. Supreme Court Justice Sandra Day O'Connor ... allows us to reflect on her impact on [ERISA] as we look ahead to the statute's 50th anniversary later this year.... Two common themes in these cases are reliance on the principles of trust law and faithful adherence to the language in the controlling plan documents. Other ERISA issues shaped by Justice O'Connor's reasoning include the formal processes of plan operations, amendments to plans, vesting and nonforfeitable rights, welfare plans, interplay between ERISA and employment law, and finally, ERISA preemption."

Tags: Health Plan Policy  •  Retirement Plan Policy

2024 Policy Priorities of the ERISA Industry Committee (PDF)
The ERISA Industry Committee [ERIC] Link to more items from this source
[Opinion]
Jan. 12, 2024

17 pages. "ERIC's policy agenda is focused on improving employee wellbeing and financial security; increasing flexibility and opportunity; reducing costs and administrative burdens; and helping large employers continue to deliver uniform benefits. ERIC advocates for measures that ensure continued tax preferences for employer- sponsored benefits and exclusive federal regulation of nationwide benefits plans through ERISA preemption."

Tags: Health Plan Policy  •  Retirement Plan Policy  •  SECURE 2.0

What Would Overruling Chevron Mean for Labor and Employment Law?
Littler Link to more items from this source
Jan. 9, 2024

"The Supreme Court will hear oral arguments on two cases challenging the deference given to federal agencies' interpretations of statutes they are charged with enforcing. If Chevron is overruled or pared back, federal agencies enforcing labor and employment laws will likely face more challenges to their rules and other interpretive guidance. Overruling Chevron may cause agencies to issue fewer new regulations, take more modest positions in the regulations they do issue, or both."

Tags: Health Plan Policy  •  Retirement Plan Policy

Legislators Consider PBM Reform to Address the Cost of Prescription Drugs (PDF)
McDermott Will & Emery Link to more items from this source
Dec. 28, 2023

11 pages. "[At] least six congressional committees have jurisdiction over some aspect of PBMs ... All six committees have advanced PBM-related bills.... [An 8-page chart] compare[s] policies in the Lower Costs, More Transparency Act [HR 5378] and the PBM bills considered individually by the relevant House and Senate committees."

Tags: Health Plan Policy  •  Prescription Drug Costs

Text of DOL Proposed Rescission of Association Health Plan Rule
Employee Benefits Security Administration [EBSA], U.S. Department of Labor [DOL] Link to more items from this source
[Official Guidance]
Dec. 19, 2023

"This document proposes to rescind the [DOL's] 2018 rule entitled 'Definition of Employer -- Association Health Plans'.... The 2018 AHP Rule's alternative criteria were set aside in large part by the U.S. District Court for the District of Columbia in [2019].... The Department ... now proposes to rescind in full the 2018 AHP Rule in order to resolve and mitigate any uncertainty regarding the status of the standards that were set under the 2018 AHP Rule, allow for a reexamination of the criteria for a group or association of employers to be able to sponsor an AHP, and ensure that guidance being provided to the regulated community is in alignment with ERISA's text, purposes, and policies." [New York v. DOL, No. 18-1747 (D.D.C. Mar. 28, 2019)]

Tags: Health Plan Design  •  Health Plan Policy

ERISA Preemption of State Regulation of PBMs May Be Headed to Supreme Court After Tenth Circuit Denies En Banc Hearing
Locke Lord LLP, via JDSupra Link to more items from this source
Dec. 19, 2023

"The Oklahoma Attorney General's office is likely to appeal to the Supreme Court. ... [T]he Eighth Circuit had previously ruled that ERISA did not preempt regulation of pharmacy benefit managers (PBMs) ... while the Tenth Circuit [has] ruled that similar regulation is preempted by ERISA.... As things now stand, PBMs, insurers, etc., operating in Kansas City, Missouri, and Kansas City, Kansas, may be subject to different legal standards as ERISA preempts state regulation of PBMs in Kansas but not in Missouri." [PCMA v. Mulready, No. 22-6074 (10th Cir. Aug. 15, 2023; pet. for en banc hearing denied Dec. 12, 2023)]

Tags: ERISA Preemption  •  Health Plan Policy

First Circuit Ruling on Benefits Limitations Period Carries ERISA Implications
DeBofsky Law Link to more items from this source
Dec. 18, 2023

"Limitations issues arise in ERISA benefit claim cases only in situations like the one in [this case], which involves a termination of ongoing benefit payments rather than an initial application for benefits ... [T]he First Circuit's concern about allowing a limitations period to accrue before a cause of action is even viable is warranted." [Smith v. Prudential Ins. Co. of Am., No. 23-1168 (1st Cir. Dec. 6, 2023)]

Tags: Disability Plans  •  Health Plan Policy

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