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Arbitration in ERISA Litigation: Supreme Court Declines Review as Circuit Split Persists

"The Supreme Court has twice declined to review ERISA arbitration cases, offering no signal that it plans to resolve the growing appellate divide.... [T]he appellate circuits remain divided on broad applicability of the doctrine. Notably, the Supreme Court has not yet been asked to weigh in on a decision upholding individual arbitration provisions ... [T]hat opportunity may arise if the Ninth or Eleventh Circuits affirm a recent Central District of California ruling that found individual arbitration requirements enforceable under ERISA Section 502(a)(2)." [Yagy v. Tetra Tech, Inc., No. 24-1394 (C.D. Calif. May 17, 2024)]

Benefits and Executive Comp Provisions in the One Big Beautiful Bill

"[E]xpanded flexibility for health savings accounts (HSAs) and new restrictions on premium tax credit eligibility ... may reduce the risk of triggering an employer shared responsibility penalty under the [ACA].... Limiting the deduction of excessive remuneration.... Expanding the application of excise tax on excess compensation within tax-exempt organizations."

Regulatory Trend: Safeguarding Mental Health in an AI-Enabled World

"New York is the first state to enact mental health-focused statutory provisions for 'AI Companions,' requiring user disclosures and suicide prevention measures for emotionally interactive AI systems.... [C]hatbots, digital wellness tools, mental health apps or even productivity assistants with emotionally aware features could fall within the scope of AI Companions depending on how they interact with users[.]"

New Reporting Requirements for TPAs, PBMs and Insurers in Indiana

"Beginning July 1, 2025, PBMs, TPAs and insurers in Indiana must annually report certain ownership information to the Indiana Insurance Department ... no later than August 30th of each year. Disclosures must include any party with 5%+ ownership, controlling interest or private equity involvement along with identifying details. A $1,000 daily penalty may apply for late filings."

Sixth Circuit Holds TPAs Do Not Get a Free Pass from ERISA's Fiduciary Duties

"Employers overseeing the day-to-day management of their plans should also be able to use the ruling to seek disclosure of information about the pricing and payment of claims, which in the past TPAs have been unwilling to share. In their role as an ERISA fiduciaries, TPAs will be obligated to disclose this information when requested by a plan administrator looking to properly administer its plan." [Tiara Yachts, Inc. v. Blue Cross Blue Shield of Mich., No. 24-1223 (6th Cir. May 21, 2025)]

Florida Regulatory Action Highlights Need for Insurers to Use Licensed TPAs

"A Florida-based [HMO] was fined for contracting with a [TPA] that was not licensed in Florida, violating its statutory obligation to ensure competent administration under Florida law. The HMO ... was fined $10,000 and agreed that any future violations would be considered willful and could lead to more severe regulatory action. This case underscores the importance of insurers and HMOs verifying the licensure status of all TPAs before entering into business arrangements."

Preparing for Implementation of Missouri Paid Sick Time: Key Deadlines and Compliance Requirements

"The earned paid sick time provisions of Proposition A are set to take effect on May 1, 2025.... The law applies to almost all Missouri employees, including full-time, part-time and temporary with limited exceptions.... While ongoing litigation and legislative efforts seek to delay or modify certain aspects of the law, these initiatives are unlikely to affect the start date or the notice period required by the statute."

ESOP Transactions and the Duty to Monitor Revisited

"Historically, it has been standard practice for the ESOP trustee to provide a certification confirming several aspects of a transaction, including a financial advisor's opinion on the adequacy of the deal consideration and the fairness of the transaction's terms.... Based on recent caselaw, advisors have begun holding a special meeting with the board and trustee before the closing of the transaction to further support the position that the board has fulfilled its monitoring duty."

Complying with the ACA Disclosure Requirements Just Got a Whole Lot Easier

"If an employer posts a clear, conspicuous and accessible notice informing employees that any individual to whom Form 1095-C/1095-B would otherwise be required to be provided may request a copy of the applicable forms, a broad mailing to all employees is not required. There has not been subsequent guidance on what will qualify as 'clear, conspicuous and accessible,' so for purposes of complying with the notice condition this year, employers are left to make a good-faith and reasonable interpretation of the standards."

OCR Proposes Regulatory Facelift to the HIPAA Security Rule

"The Proposed Rule requires group health plans to include certain requirements in their plan documents for their group health plan sponsors to: [1] Comply with the administrative, physical and technical safeguards of the Security Rule; [2] Ensure that any agent to whom they provide ePHI agrees to implement the administrative, physical and technical safeguards of the Security Rule; and [3] Notify their group health plans upon activation of their contingency plans without unreasonable delay, but no later than 24 hours after activation."