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Bankruptcy Court Provides 'Preliminary Observations' on Pension Plan Withdrawal Liability

"[T]he Judge determined ... [1] Where future payments include an interest component (either explicit or implicit), that component is disallowed as unmatured interest, but no further discounting is appropriate; [2] The proper discount rate to use to calculate the present value of a pension withdrawal claim is the pension plan's assumed rate of return on assets; and [3] The limitation on withdrawal liability applicable to an insolvent employer (ERISA Section 4225(b)) undergoing liquidation or dissolution is applied after the application of the 20-year cap." [​In re Yellow Corp., No. 23-11069 (Bankr. D. Del. Apr. 7, 2025)]

DOL: Employers Cannot Mandate Use of PTO Concurrently with FMLA Leave When Employee Is Receiving Pay from a State or Local Family or Medical Leave Program

"Any policies that require employees to use accrued PTO concurrently with FMLA leave when the employee is also receiving state or local paid family or medical leave benefits or any other pay should be revised to provide that only when the employer and employee agree can PTO be used to supplement an employee's pay from a state or local family or medical leave program or any other payment program during FMLA leave."

In a New Win for Providers, No Surprises Act Rules Struck for Allowing Ghost Rates

"The district court agreed that the QPA methodology outlined in the regulations ... deviated from the NSA statutory requirements, and it vacated those regulations as well as two other regulations governing the claim and IDR process.... [This case] represents a significant victory for providers because it shuts the door to certain types of tactical behavior by insurers around QPA calculations, and it has led the agencies to call for a total halt of the NSA IDR process while they come up with a plan to comply with TMA III pending appeal." [Texas Medical Association v. HHS, No. 22-450 (E.D. Tex. Aug. 24, 2023)]

New York DFS Issues Guidance on Surprise Billing Disputes

"Accident and health insurers and health maintenance organizations (HMOs) doing business in New York should consider new guidance from the New York Department of Financial Services ... Circular Letter 2023-2, issued on May 9, 2023, addresses the criteria to be used to determine a reasonable fee in an IDR context and reminds issuers and providers that they must submit all relevant information to the IDR entity at the time of application or upon the IDR entity's request."

States' Suit to Block ESG Investment Rule Could Have Far-Reaching Implications for the Anti-ESG Movement

"In addition to providing a venue for the courts to clarify the scope of the duties of fiduciaries under [ERISA], these cases present an opportunity to address whether and to what extent ESG considerations relate to pecuniary interests and financial risk and return -- a premise of the 2022 Rule and a key question raised by Republican-led states' ongoing resistance to ESG‑based investing." [Utah v. Walsh, No. 223-00016, (N.D. Tex. complaint filed Jan. 26, 2023)]

NAIC Considers PBM Regulation; Additional Requirements Possibly on Tap

"Pharmacy benefit managers (PBMs) should consider the implications of a model law making its way through the National Association of Insurance Commissioners (NAIC) that would establish a licensure requirement and rules of conduct for these participants in the health care marketplace. A number of states have already adopted their own PBM laws, and an NAIC model would be likely to motivate others to do so."

DOL and IRS Provide Clarifications on Deadline Extensions and Flexibility in FSA Administration

"The guidance in [EBSA Disaster Relief Notice 2021-01] provides significant relief for plan participants, who may continue to benefit from the tolling of applicable deadlines, albeit with a one-year limit. On the other hand, it imposes additional administrative burdens on plan sponsors and administrators in what is already a challenging time."