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Major Disruptions Will Soon Shape the Future of Benefits

Major disruptions in the benefits world are about to shape the future of the industry, according to a panel of experts at the 2017 EBN Benefits Forum & Expo in (mostly) sunny Boca Raton, Florida.

Employee Benefits Newsletter – Summer/Fall 2017

Proving Loss Causation in Breach of Fiduciary Claims – The Split Widens. Analysis of recent litigation trends involving loss causation, an important burden-of-proof issue in ERISA fiduciary claims.

Enhanced HHS HIPAA Breach Reporting Tool May Aid Health Care Industry Data Security Efforts

Secretary Tom Price of the U.S. Department of Health and Human Services (HHS) announced his agency needs “to focus more on the most recent breaches and clarify when entities have taken action to resolve the issues that might have led to their breaches.” Accordingly, HHS’ Office of Civil Rights has launched a revised web tool providing information about HIPAA breaches. The tool, the HIPAA Breach Reporting Tool (HBRT), features improved navigation helping those looking for information on breaches and ease-of-use for organizations reporting incidents. It also gives health care providers, health plans and business associates easy access to a database from which they can gain a better sense of the common types of breaches and the steps HHS is calling for in order to resolve HIPAA breach cases.

Out of Sight, Out of Mind . . . But Don’t Forget the Possibility of ACA Retaliation Claims

While many were hoping that the Affordable Care Act (ACA) would finally be dead by now, and others are lamenting the fact that the “repeal-and-replace” attempts have fallen by the wayside, we thought it may be worthwhile to remind people that the ACA has not gone anywhere. In fact, as we are quickly approaching the end of 2017, employers may soon be receiving employer mandate assessments.

Significant Changes Proposed for Employee Benefit Plan Audit Reports

Under ERISA, retirement plans and self-insured welfare plans with 100 or more participants (measured as of the beginning of the plan year) are generally required to conduct annual audits, and to include the audit reports with their annual Form 5500 filings. The American Institute of Certified Public Accountants’ (AICPA) Auditing Standards Board has proposed changes to the reporting standards for annual audits of employee benefit plans that are covered by ERISA. The proposal, which was issued in April 2017, was in response to a request from the U.S. Department of Labor to re-examine the current audit reporting model for employee benefit plans.

Benefits Update (No. 3, September 2017)

A federal appeals court has handed multiemployer pension plans a blank check to assess increased withdrawal liability against employers exiting a plan. The 11th Circuit Court of Appeals’ recent decision in Westrock RKT Company v. PACE Industry Union-Management Pension Fund is bad news for employers already saddled with statutory withdrawal liability costing millions of dollars. This new decision means multiemployer pension plans in “critical” status are free to add their own assessments on top of existing obligations under the Multiemployer Pension Plan Amendments Act of 1980 (MEPPAA)

Improper HIPAA Disclosure Results in Termination and Legal Dispute

The Kentucky Court of Appeals recently held that a hospital acted lawfully in terminating the employment of a nurse for violating the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The nurse had been within earshot of other patients and medical personnel when she told her colleagues to wear gloves because a particular patient had Hepatitis C. The court’s decision makes clear that medical providers must handle HIPAA-related information with extreme care and that probable (not actual) disclosure may be enough to constitute a HIPAA violation—or at least serve as a basis for discharging an employee who makes an alleged disclosure. Hereford v. Norton Healthcare, Inc. d/b/a Norton Audubon Hospital and Phyllis Vissman, No. 2015-CA-001958-MR (Ky. Ct. App. July 21, 2017).

Back to School for ERISA Fiduciary Claims: How to Prepare for This Trend in University Litigation

In the past 10 years, there have been an increasing number of lawsuits asserting Employee Retirement Income Security Act of 1974 (ERISA) fiduciary claims. These have been accompanied by an increased focus by the Department of Labor (DOL) on fiduciary matters. This trend began with lawsuits against 401(k) plan fiduciaries alleging poor investment options and has evolved into lawsuits challenging not only the performance of investments offered under the plan, but also the fees associated with those investments. In addition, almost all of the more recent lawsuits examine not only the expenses associated with the investments, but all of the fees that the plan pays. They also allege that plan participants suffered losses to the value of their retirement savings.

FORFEITURE FREEDOM

Some of our employer client sponsors of pre-approved 401(k) plans have contacted us regarding plan amendment notices received recently from their prototype or volume submitter plan document sponsors relating to the expanded use of forfeitures in their plans.

WPI Insider Briefing: After ACA "Repeal and Replace" Effort Fails, What's Next For Employers on Health Care and Other Workplace Policy Issues?

Last month began with significant momentum but long odds that Senate Republicans would pass legislation repealing and replacing the Affordable Care Act (ACA). In the early hours of July 28, GOP efforts came to a screeching halt as a last-ditch "skinny" repeal bill failed, all but ending the seven-year quest to overturn the sweeping health care law.

Jackson Lewis P.C. | Washington | Washington Enacts Healthy Starts Act: New Workplace Accommodation Protections for Pregnant Employees (September 11, 2017)

FordHarrison LLP | Florida | Non-Compete News - Florida Supreme Court Holds Referral Sources Are Legitimate Business Interests Under Florida's Non-Compete Statute (September 18, 2017)

FordHarrison LLP | New York | The 2nd Department Rejects NYSDOL's "13 Hours Rule" For 24-Hour Shift Workers (September 17, 2017)

Littler Mendelson, P.C. | New York | New York Paid Family Leave Benefits Law Deadline for Employers to Apply for Approval as a Self-Insured Employer Rapidly Approaching (September 13, 2017)

Fisher Phillips | California | The End is Near! – Follow These Labor and Employment Bills as the California Legislative Year Wraps Up (September 06, 2017)

Jackson Lewis P.C. | California | California on Brink of Further Expansion of Fair Pay Protections (September 15, 2017)

Ogletree Deakins | California | San Diego Enacts Pay Equity Ordinance for City Contractors (September 14, 2017)

Littler Mendelson, P.C. | New York | Another New York State Appellate Court Finds 24-Hour Non-Residential Home Care Attendants Must be Paid for Sleep and Meal Periods (September 17, 2017)

Goldberg Segalla LLP | Pennsylvania | Pennsylvania Courts Continue to Extend Theories of Liability in Nursing Home Malpractice Cases (August 31, 2017)

Littler Mendelson, P.C. | California | California Countdown: Which Labor & Employment Bills Will the Governor Sign? (September 21, 2017)