Author: Hannah J. Barlow

Hannah Barlow counsels public and private companies in their design and implementation of employee benefit plans, including as a result of mergers, acquisitions, and divestments. She guides clients with respect to their suite of benefit plan offerings through changes in statutory and case law, nuances of the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (including the Patient Protection and Affordable Care Act, Health Insurance Portability and Accountability Act (HIPAA), and related federal and state laws and regulations), nondiscrimination testing and compliance fixes, multiemployer and single-employer pension matters, benefits claims and litigations, ERISA fiduciary risks and responsibilities, compensation and renumeration strategies, and various government agency filings, investigations and audits.

New Self-Correction Component under the DOL’s Voluntary Fiduciary Correction Program

The Voluntary Fiduciary Correction Program (VFCP) has long been a source of reprieve to plan sponsors and fiduciaries from enforcement actions by the Department of Labor (DOL), by allowing the voluntary correction of a number of Employee Retirement Income Security Act (ERISA) violations before potential agency intervention. In coming forward and voluntarily correcting certain errors, the DOL continues to encourage plan sponsors and fiduciaries to engage in such behavior by issuing letters to those who have accepted VFCP submissions stating that the agency will not take any further action and will not pursue civil penalties on those matters. However, VFCP submissions require detailed applications which can be time-consuming and costly to prepare in comparison to the potentially minor correction that they are intended to rectify.

On January 15, 2025, the DOL’s Employee Benefits Security Administration (EBSA) amended and restated the VFCP, including finalized amendments to Prohibited Transaction Exception (PTE) 2002-51, to be effective March 17, 2025.

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Reproductive Health Information Protections Afforded by New HIPAA Privacy Guidance

On April 26, 2024, the U.S. Department of Health and Human Services (HHS) issued a Final Rule updating certain Health Insurance Portability and Accountability Act (HIPAA) privacy rules with respect to the disclosure of protected health information (PHI) related to reproductive health care. Essentially, the Final Rule prohibits a covered entity from using or disclosing PHI to conduct criminal, civil or administrative investigations, or to impose corresponding liability on a person seeking or providing lawful reproductive health care.

Reproductive health care is broadly defined as “health care that affects the health of the individual in all matters relating to the reproductive system and to its functions and processes.” The preamble provides a non-exhaustive list of examples, including contraception, fertility and infertility treatments, and pregnancy-related care.

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