Search the News Archive

Kilpatrick Townsend Comment Letter to IRS on Proposed ACA Regs on Employer Shared Responsibility

"[This comment letter is] submitted on behalf of two separate Fortune 500 companies [whose] group health plans ... have in excess of 400,000 employees and covered dependents ... Crediting Hours of Service for a period of time for which no duties are performed should be subject to a maximum crediting period.... [The authors] suggest that the Service apply a maximum time period of six months, after which Hours of Service no longer are required to be credited."

Kilpatrick Townsend Comment Letter to HHS on the Application of the Reinsurance Fee to Employer Group Health Plans

"The definition of Group Health Plan should specifically exclude employee assistance programs, disease management programs and wellness programs.... 'retiree-only' plans ... [and] health flexible spending arrangements.... The calculation of Reinsurance Contribution Enrollees [RCEs] should account for the various methods that group health plans use to determine covered employees and their covered dependents.... [T]he definition of RCE should specifically exclude individuals who are Medicare-eligible.... Individuals who are not residents of the United States should be excluded from determining the number of [RCEs]."

Kilpatrick Townsend Comment Letter to IRS Concerning Form W-2 Reporting Requirements

This comment letter is limited specifically to the treatment of on-site medical clinics under [Notice 2011-28.].

Kilpatrick Townsend Comment Letter to DOL and IRS on Treatment of Employee Assistance Programs Under Mental Health Parity and Addiction Equity Act of 2008 (PDF)

5 pages. Excerpt: I ... recommend that for purposes of MHPAEA compliance you do not require that the EAP be aggregated with the employer's traditional group health plan providing medical and mental health benefits.... [and] that you allow employers the option of requiring its employees to use the EAP first for those services covered by the EAP (i.e., outpatient counseling) before the employee can use the mental health services covered by the employer's traditional group health plan.

DOL Declines to Defend Fiduciary Investment Advice Rule But May Target Proxy Advisors

"Proxy advisors who provide recommendations and analysis to shareholders (including ERISA plan fiduciaries) regarding how to vote proxies on corporate matters may not fit neatly within the traditional fiduciary framework. However, the Executive Order directs the DOL to consider whether proxy advisors to ERISA plans should be ERISA fiduciaries because of their 'relationship of trust and confidence' with their clients."

Final Catch-Up Contribution Regulations under SECURE 2.0 Act

"The final regulations maintain the rule that MRC status is determined solely based on the employer and not on a controlled group basis.... The final regulations retain the exception to the universal availability requirement so that catch-up contributions of Puerto Rico participants can be limited by the Puerto Rico tax code."

Ninth Circuit Rejects Plaintiffs Challenge to 401(k) Investments in Private Equity

"The Ninth Circuit's decision ... demonstrates that providing detailed disclosures about plan investments to plan participants can help to protect against fiduciary liability. Further, [it] reinforces that claims about investment option performance should require identification of 'meaningful benchmarks' of funds with similar risk and investment aims against which the investment option's performance should be measured." [Anderson v. Intel Corp. Inv. Policy Comm., No. 22-16268 (9th Cir. May 22, 2025)]

Supreme Court Delivers Troubling Decision for ERISA Excess Fee Cases

"[T]he best near-term hope is if district courts ... take the strong encouragement from the Alito concurrence (and the more moderate encouragement from the main opinion) to consider the Reasonable Compensation Exemption at the motion to dismiss stage ... In addition to the alternatives recognized by the Court, the [DOL] could possibly take steps to address the potential for meritless excess fee cases discouraging employers from continuing plans." [Cunningham v. Cornell Univ., No. 23-1007 (S.Ct. Apr. 17, 2025)]

IRS Issues Proposed Regs Regarding Mandatory Auto-Enrollment Under SECURE 2.0

"The proposed regulations clarify that a grandfathered plan will not lose its status as exempt from the mandatory automatic enrollment requirements simply because the plan is amended outside of the plan merger and spinoff context ... [T]he proposed regulations clarify that if an employer maintains a grandfathered plan and the plan then merges into a non-grandfathered MEP, the plan will retain its grandfathered status with respect to that employer."

IRS Issues Proposed Regulations on SECURE 2.0 Catch-Up Changes

"A higher catch-up contribution limit applies to employees who attain ages 60-63 during a plan year, which is first effective for plan years beginning in 2025.... Catch-up eligible employees with wages over $145,000 (indexed for inflation) in the prior calendar year will be eligible to make catch-up contributions only on a Roth basis beginning in 2026.... While the proposed regulations will not be effective until six months after they are issued as final regulations, plans are permitted to apply them beginning in 2025."