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IRS Final Regs on Catch-Up Contributions: What Plan Sponsors Should Know

"Plan sponsors should review their plan documents to: [1] implement a 'deemed Roth election' that automatically treats high-earner catch-ups as Roth, [1] specify whether wages from multiple employers in a controlled group or from a common paymaster will be aggregated when determining high-earner status, [3] describe any super catch-up opportunity for individuals aged 60 to 63 and [4] describe any in-plan rollover feature that it may consider as a method of correction."

The Thoughtful Fiduciary's Guide to Alternative Assets for 401(k) Investors

"The order does not: [1] Change ERISA fiduciary standards ... [2] Require inclusion of alternative assets in retirement plans ... [3] Provide guidance or safe harbors ... [C]ompanies should ... [1] Update fiduciaries ... [2] Monitor forthcoming guidance ... [3] Understand alternative asset classes ... [4] Understand investment requirements ... [5] Tread carefully."

DOL Issues Guidance Implementing SECURE Act Changes to Defined Benefit Plan Annual Funding Notices

"Congress revised the statutory framework for AFNs through SECURE 2.0, prompting new compliance challenges for plan sponsors. [FAB 2025-02] is intended to clarify the act's compliance expectations for AFNs beginning this year."

HHS Proposed Rule May Enhance HIPAA Security But Leaves AI Questions Open

"While the proposed rule is an important component of HHS’ ongoing effort to enhance cybersecurity requirements, many of the proposals raise significant new questions regarding HHS’ expectations. If adopted, the sweeping changes could have a significant impact on the way covered entities and business associates conduct business, including with each other.... While OCR had the opportunity to set new ground rules for the use of artificial intelligence and machine learning (AI/ML) in the proposed rule, the agency instead chose to request additional input on their use. "

Are You Providing Free Translators for Individuals with Limited English Proficiency?

"A covered entity must take reasonable steps to provide meaningful access and communication to everyone with LEP. This includes providing, for free and to the extent required, language assistance, qualified interpreters and translators, and other services such as translation of patient notices and forms."

Supreme Court Holds That SEC Must Seek Civil Penalties in Federal Court

"The impact of this decision will likely be felt both in cases involving the SEC and those involving different administrative agencies. Most immediately, the SEC will have a hard decision to make with respect to a large swath of pending administrative enforcement proceedings seeking civil penalties for securities fraud." [SEC v. Jarkesy, No. 22-859 (S. Ct. Jun. 27, 2024)]

Supreme Court Opens Door to New Legal Challenges to Federal Regs, Both New and Old

"In the short term, this is likely to bring about some destabilizing changes in regulatory frameworks, as long-settled regulations are subjected to new and more searching judicial inquiry. Over the long term, however, Loper Bright may bring more stability to regulated industries.... [T]he impact of Corner Post turns largely on the ability for parties to ask for and receive universal vacatur of agency regulations -- as opposed to merely party-specific relief." [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm., No. 22-451 (S. Ct. Jun. 28, 2024); Corner Post v. Bd. of Gov. of the Federal Reserve System, No. 22-1008 (S. Ct. Jul. 1, 2024)]

Church Plan Status: Employee Benefit Plan Administration for Senior Living Facilities Associated with Faith-Based Organizations

"This alert provides a high-level overview as to the scope of ERISA's legal requirements and the church plan exemption and discusses certain considerations faith-based organizations may take into account when determining whether to 'opt-in' to ERISA's regime and maintain an Electing Church Plan."

Do You Have Business Associate Agreements with Every Required Party?

"It is critical for all entities who create, receive, maintain or transmit PHI to ensure they have [business associate agreements (BAAs)] in place. [Covered entities (CEs)] must ensure they have BAAs with all of their [business associates (BAs)]; BAs must ensure they have BAAs with CE customers and BA subcontractors; subcontractors also need to ensure they have BAAs in place with their BA customers (often known as sub-BAAs). All parties need to ensure their BAAs comply with the statutory requirements, at a minimum."

A New Frontier for ERISA Fee Suits: Group Health Plans

"Because fiduciaries are now required to have increased access to cost and pricing information of underlying plan benefits, considering how to use data to help evaluate and control plan costs should be top of mind for ERISA group health plan fiduciaries. Identifying the responsible fiduciaries for this function is critical as ERISA plaintiffs' firms begin using the same or similar data to support claims regarding excessive fees paid by group health plans." [Lewandowski v. Johnson & Johnson, No. 24-0671 (D.N.J. complaint filed Feb. 5, 2024)]