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Seventh Circuit Holds that a Deceleration of Withdrawal Liability is Unavailable Under ERISA’s Common Law

In Bauwnes v. Revcon Technology Group, Inc., the U.S. Court of Appeals for the Seventh Circuit held that the trustees of a multiemployer pension plan could not agree to an employer’s installment payment plan of its withdrawal liability after the trustees had demanded full payment following the employer’s default. This “no good deed goes unpunished” decision will likely make trustees much less likely to agree to subsequent payment plans after finding an employer in default.

OCR Recognizes Insider Threats to HIPAA PHI, You Should Too

As we have observed here, news reports of security risks, hackings and breaches caused by individuals, terror groups or even countries around the world certainly are important and can be unsettling. But, for many organizations, including healthcare providers and business associates, a significant and perhaps more immediate area of data risk is malicious insiders. On August 29, the Office for Civil Right (OCR) published its 2019 summer cybersecurity newsletter entitled, “Managing Malicious Insider Threats,” acknowledging this threat and providing some best practices to neutralize it.

Solving a Chronic Problem: IRS Expands Preventive Care to Include Certain Chronic Conditions

On July 17, 2019, the Internal Revenue Service (IRS) and the Department of the Treasury in Notice 2019-45 announced the expansion of preventive care benefits under qualifying high-deductible health plans (HDHPs). This expansion allows individuals to retain their eligibility to make contributions to health savings accounts (HSA) when covered under HDHPs that provide for first-dollar coverage for certain chronic conditions.

The IRS Doesn’t Disappoint...Again

As imagined by plan sponsors of closed defined benefit pension plans, the IRS issued Notice 201-49, the fifth extension for an additional year of the temporary nondiscrimination relief for “closed” defined benefit pension plans originally announced by the IRS during 2014. The extended relief applies to plan years beginning before 2021 for those “closed” plans that satisfy certain conditions in Notice 2014-5. The relief for “closed” defined benefit plans refers to those defined benefit plans amended prior to December 13, 2013, to limit ongoing accruals to some or all employed participants in the plan as of a particular date, thus no longer admitting new participants into the plan.

2020 Drug Coupon Rule Dropped Due to Implementation Concerns

Employer plans will still be able to exclude the value of drug manufacturer coupons from annual out-of-pocket maximums, even when no generic equivalent is available, under new guidance from the Department of Labor, Department of Health and Human Services (HHS), and Department of Treasury. These exclusions, or copay accumulators, are built into many employer plans.

Striking Down Decades-Old Precedent, Ninth Circuit Rules That ERISA Breach of Fiduciary Duty Claims May Be Arbitrated

On August 20, 2019, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion in Dorman v. Charles Schwab Corp.,1 overturning its 1984 position in Amaro v. Continental Can Co.2 that lawsuits filed under the Employee Retirement Income Security Act (ERISA) are not arbitrable. The court found that subsequent U.S. Supreme Court decisions mean that Amaro “is no longer good law.”

Why Trendy Employee Benefit Options May Have Unintended Negative Consequences

In their effort to engage and retain employees, especially those from Generations Y and Z, employers are looking for innovative ways to secure a reputation as an employer of choice. In the process, though, they may be inadvertently turning some employees off. What resonates and engages with one employee may be a big turnoff to others.

Beginning in 2020, Employers May Reimburse Health Insurance Premiums as an Alternative to a Traditional Group Health Plan (Subject to Several Requirements)

Many employers have contacted us over the years asking whether they may offer an “employer–payment plan” rather than offer a traditional group health insurance plan. An employer-payment plan is a type of account-based plan that provides an employee reimbursement for all or a portion of the premium expense for individual health insurance coverage or other non-employer hospital or medical insurance.

DOL Eases Roll-Over Rules for Left-Behind 401(k) Funds

The Department of Labor (DOL) has issued a final exemption to make it easier for employers to transfer 401(k) plan funds left behind by former workers to their new employers' plans. The rule is expected to help many employers in industries with high labor turnover (such as retail) who must keep records of numerous small accounts, try to track missing participants and deal with uncashed distribution checks. Employees are likely to benefit by having their retirement assets follow them more easily from job to job and consolidate their savings.

Third Circuit Joins Majority in Rejecting “De Facto Administrator” ERISA Theory

The U.S. Court of Appeals for the Third Circuit joins the Second, Seventh, Eighth, Ninth, and Tenth Circuits in declining to impose liability on alleged de facto plan administrators. Under Section 502(c) of ERISA, a plan administrator may be liable and subject to penalties for failing to comply with a participant’s request for information which the administrator must provide within 30-days from the request. The Third Circuit addressed whether a participant could sue a “de facto plan administrator” for failing to provide information timely.
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