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Key Arguments in Defending a Disability Claim Based on Subjective Complaints

Courts often do not clearly articulate what are key arguments in defending an action under the Employee Retirement Income Security Act of 1974 (ERISA) involving a claim for benefits based on subjective complaints. However, the stars recently aligned and U.S. District Judge Michael W. Fitzgerald of the Central District of California did just that in Haber v. Reliance Standard Life Insurance Company, No. 14-9566, 2016 WL 4154917 (August 4, 2016). He concluded that the plaintiff Orly Haber did not prove that her upper extremity pain complaints were severe enough to preclude her from performing an occupation normally performed in the national economy for which she was reasonably suited based upon her education, training, or experience (the “any occupation” standard). This article discusses the key points made by Judge Fitzgerald. The quotes in the subheadings below are taken from Judge Fitzgerald’s opinion.

Smaller HIPAA Breaches To Get More Attention by Office for Civil Rights

The HIPAA breach notification rule has two buckets for classifying data breaches – those that involve “protected health information” (PHI) of 500 or more individuals and those that involve fewer than 500 individuals. Since the breach notification rule became effective, the Office of Civil Rights’ (OCR) focus has been on the 500 and over bucket. But no more.

Retirement Plan Lawsuits Against Top Universities Could Spark Trend

Class-action lawsuits have been filed against nine of the nation's leading universities claiming that tens of thousands of employees and retirees were forced to pay millions of dollars in excessive fees relating to their 401(k) and 403(b) accounts in violation of the Employee Retirement Income Security Act (ERISA).

Multiple Universities Sued Over 403(b) Retirement Plan Investment Fees

In the last several days, a number of large private universities have been sued regarding the investment fees in their 403(b) retirement plans. The lawsuits claim that these universities breached their fiduciary duties under the Employee Retirement Income Security Act (“ERISA”) by allowing excessive fees to be charged to plan participants. All but one of these lawsuits has been filed by the same plaintiffs’ law firm. These lawsuits are, with some critical differences, similar to the many retirement plan fee lawsuits that were filed against corporate 401(k) plan sponsors over the past 10-15 years, some of which settled for very large amounts.

Are You Down With O.O.P.s?: Opt-Out Payments Under the Affordable Care Act

In Notice 2015-87, the IRS addressed the impact of employer opt-out payments — payments made to employees who decline enrollment in an employer’s group health plan — on affordability for ACA purposes. Employers who do not offer group health coverage that is affordable as defined under the ACA risk significant penalties. For 2016, group health coverage is considered affordable if the employee’s cost for the least expensive self-only coverage under the plan does not exceed 9.66% of the employee’s annual household income. For 2017, the percentage increases to 9.69%.

Hire Me!

Financial Advisers and retail financial services firms face a number of challenges in dealing with the new fiduciary rule the Department of Labor announced this spring. But little did they know that they may confront the issues from their first contact with a potential client. That’s right—even before selling their advisory services, these new fiduciary issues pop up.

Affordable Care Act Mid-Year Checkup: Count Your Contingent Workers

The ACA requires “applicable large employers” (those with 50 or more employees) to offer health coverage meeting affordability and other standards to their full-time employees. Failing to offer minimum essential coverage to at least 95% of full-time employees, or offering coverage that is not “affordable,” may result in significant penalties if a full-time employee receives a federal premium tax credit to purchase coverage through an ACA exchange. A full-time employee is one who works on average 30 or more hours per week or 130 or more hours per month. The hours of part-time employees are converted to full-time equivalents to determine whether a business is an applicable large employer, but only full-time employees must receive offers of complying coverage.

IRS Issues Guidance on Changes to Determination Letter Program for Retirement Plans

The Internal Revenue Service recently issued Revenue Procedure 2016-37, which sets forth in detail the significant changes to the IRS’s determination letter program for qualified retirement plans, which we have written about in previous alerts. The changes will be effective January 1, 2017. The most significant change is the IRS’s elimination of the staggered five-year remedial amendment cycle for individually designed plans. As of January 1, 2017, sponsors of individually designed plans will be permitted to submit determination letter applications only for initial plan qualification, qualification upon plan termination, and certain other circumstances that will be determined each year by the IRS.

Employer-Sponsored Benefits in the Gig Economy

As the gig economy grows, policymakers are asking, “what happens with employee benefits?” Specifically, if gig workers are not classified as employees, what options should they have for retirement savings and health insurance? And what should gig businesses do?

IRS Proposes Regulations on Group Health Benefit Opt-Out Payments

The IRS has issued proposed regulations that confirm the position it took in Notice 2015-87 with regard to unconditional opt-out payments - payments made to employees who forgo group health benefits and increase the amount of their monthly premium by the amount of the payments. The proposed regulations, which also cover eligible conditional opt-out payments, would take effect for plan years beginning in 2017. The IRS anticipates issuing final regulations before the end of 2016.