The Consolidated Appropriations Act of 2021 generally requires group health plans and health insurance issuers to submit a Gag Clause Prohibition Compliance Attestation (Attestation) each year to demonstrate compliance with the prohibition on including gag clauses in certain agreements. The Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued FAQs last February requiring affected plans and issuers to submit their first Attestations no later than December 31, 2023, covering the period beginning December 27, 2020 through the attestation date, with subsequent Attestations due annually thereafter.
Prohibition on Gag Clauses
Group health plans and health insurance issuers offering group health insurance coverage are prohibited by ERISA and the Internal Revenue Code from entering into an agreement with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan or issuer from (i) disclosing provider-specific cost or quality-of-care information to referring providers, plan sponsors, enrollees or eligible individuals; (ii) electronically accessing de-identified claims and encounter information or data for plan participants, beneficiaries, or enrollees, and (iii) sharing such information or data with business associates, consistent with applicable privacy regulations. A similar prohibition applies to health insurers offering individual health insurance coverage under the Public Health Service Act. These prohibited restrictions are referred to as “gag clauses.”
Continue reading “Reminder: Gag Clause Attestations Due by Year-End”
In an ERISA case for wrongful denial of health insurance benefits, the U.S. Court of Appeals for the Fourth Circuit addressed when a plaintiff may recover monetary relief under §§ 502(a)(1)(B) and (a)(3). The Fourth Circuit unsurprisingly held that ERISA § 502(a)(1)(B) limits recovery to benefits due under the terms of a plan, and a plaintiff cannot recover the cost of a denied surgery because the cost is not a “benefit” due; coverage for the cost, and payment to the provider, is the benefit. Unless a plaintiff pays the bill first, the plaintiff cannot recover the cost from an insurer.
The court’s discussion of the § 502(a)(3) claim was not so straight-forward, however, and ultimately much more important. The Fourth Circuit held that § 502(a)(3), which expressly permits only “appropriate equitable relief,” does allow some forms of monetary relief (traditionally thought of as legal, and not equitable), but prohibits others.
Continue reading “When One Door Closes, Another Opens… Maybe. Fourth Circuit Holds That Surcharge Is Not Equitable Relief Available Under ERISA But Paves the way for Unjust Enrichment Claims”
In Rose v. PSA Airlines, Inc., 80 F.4th 488 (4th Cir. 2023), the U.S. Court of Appeals for the Fourth Circuit held that ERISA § 502(a)(3), which permits a claim for “other appropriate equitable relief,” does not allow claims to recover money from a defendant’s general assets. This alert discusses the Rose decision and its potential impact on ESOP cases.
Continue reading “Thinking ESOPs: Fourth Circuit Narrows Equitable Relief Under ERISA”
In Waggeh v. Guardian Life Ins. Co. of Am., 2023 WL 4373897 (D. Mass. July 6, 2023), Chief Judge Saylor of the District of Massachusetts rejected the plaintiff’s contention that her state law claims “fell outside the provisions of ERISA,” and dismissed the complaint on the grounds that they were preempted by ERISA. In support of its motion to dismiss, Guardian offered an affidavit disputing the assertions in the complaint, but did not include a copy of the policy or the plan with the affidavit. While the court ultimately dismissed the complaint, Guardian’s affidavit was not considered — emphasizing the importance of governing documents.
Continue reading “Waggeh v. Guardian Highlights Importance of Governing Documents in ERISA Disputes”
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, ERISA Moments: What Will be in the New DOL Fiduciary Proposal: Our Thoughts, below.
Continue reading “ERISA Moments: What Will be in the New DOL Fiduciary Proposal: Our Thoughts”
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the newest episode, The DOL’s New Fiduciary Proposal is at the OMB: What’s Next?, below.
Take a quick dive into the exciting world of ERISA with Faegre Drinker benefits and executive compensation attorneys Fred Reish and Brad Campbell. In this quick-hit series of updates, Fred and Brad offer a high-level view of current trends and recent ERISA developments. See the first episode, A Federal Court Decides on the DOL’s ESG Regulation, below.
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Written by members of Faegre Drinker’s benefits and executive compensation team, this blog features analysis and information on matters related to retirement plans, health and welfare plans, ESOPs, ERISA litigation, fiduciary governance, and other benefits issues.
This quarterly digest provides links to our most popular posts during the past few months so that you can catch up on what you missed or re-read them.
By Sarah Bassler Millar, Yael Kalman and Dawn Sellstrom
Plan sponsors, insurers, and third-party administrators should pay close attention to the new guidance to facilitate health plan compliance with complex nonquantitative treatment limitation comparative analyses requirements.
By Kimberly Jones and James E. Crossen
401(k) plan fiduciaries recently defeated a lawsuit alleging the fiduciaries imprudently managed and paid excessive record keeping an investment fees. The victory for the fiduciaries follows a jury trial win of Yale University’s 403(b) plan. The court opinions in both of these cases serve as a good reminder that offense is the best defense, and ERISA plan fiduciaries best protect themselves against ERISA breach of duty of prudence claims by proactively implementing strong fiduciary governance practices, such as keeping thorough committee meeting minutes.
By Mona Ghude and Mark Rosenfeld
On August 25, 2023, the IRS announced a two-year delay for the Roth catch-up contribution requirement for employees making $145,000 or more in the prior calendar year that would have applied in 2024. The Roth catch-up contribution requirement will now be effective for taxable years beginning after December 31, 2025.