In Case You Missed It: Spotlight on Benefits – Fall 2023

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.


DOL Issues Long Awaited Mental Health Parity Guidance

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.

Another 401(k) Plan Fiduciary Defeats Breach of Fiduciary Duty Claims at Trial

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.

IRS Issues 2-Year Delay for Roth Catch-Up Contribution Requirements

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.

DOL Issues Long Awaited Mental Health Parity Guidance

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.

On July 25, 2023, the Department of Labor (DOL), Department of the Treasury (Treasury), and Health and Human Services (HHS) (the Departments) issued a proposed rule on how to comply with the nonquantitative treatment limitations (NQTL) comparative analyses requirements enacted under the Consolidated Appropriations Act, 2021 (CAA). The requirement for health plans to perform and document their comparative analyses of the design and application of NQTLs became effective February 10, 2021, and the DOL has been aggressively enforcing the requirement through extensive, multi-year health plan investigations over the last few years. In addition to the proposed rule, the new guidance issued also includes:

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Health Plan Coverage and Documentation Following the End of the COVID-19 Emergencies

The COVID-19 national emergency and public health emergency officially ended on April 10 and May 11, 2023, respectively. (As a practical matter, the Biden administration is effectively treating both emergencies as ending on May 11, 2023, however.) The end of the emergencies offers sponsors of group health plans the opportunity to modify certain COVID-19-related benefits that were offered in the past several years because of national emergency and public health emergency-related legislation and regulations.

In early 2020, following passage of the Families First Coronavirus Response Act (FFCRA) and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the release of guidance from the Internal Revenue Service, Department of Labor, and Department of Health and Human Services (collectively, the Agencies), group health plan sponsors and administrators worked quickly to implement new mandates and incorporate plan operational flexibility relating to the coverage and provision of COVID testing, vaccines, and telehealth. (In addition, the Agencies also adopted various extensions to employee benefit plan deadlines that are coming to an end with the end of the national emergency, as discussed in a previous Spotlight on Benefits post.)

Continue reading “Health Plan Coverage and Documentation Following the End of the COVID-19 Emergencies”

In Case You Missed It – Winter 2023

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.


Secure 2.0 Adds New Distribution Options for Defined Contribution Plans

By Mark Rosenfeld, Erik Vogt, and Mark M. Brown
SECURE 2.0 introduced several new distribution options and tax reporting rules for defined contribution plan sponsors. In this post, we overview the new provisions and their potential implementation dates.

COVID-19 National Emergency Plan Deadline Extensions Set to End This Summer

By Stephanie L. Gutwein and James E. Crossen
On January 30, 2023, President Biden announced the Administration’s plan to extend the current declarations of the COVID-19 national emergency and public health emergency (PHE) through May 11, 2023, and end both emergencies on that date. The end of the national emergency, which was originally declared in March 2020, will cause certain employee benefit plan-related deadline extensions to conclude this summer.

Multiemployer Pension Plan Alert: Evergreen Clauses May Trump the Bargaining Parties’ Subsequent Agreement

By Gregory Ossi and Caitlin M. Britos
The U.S. Court of Appeals for the Seventh Circuit recently ruled that Central States, Southeast and Southwest Areas Pension Fund may continue its lawsuit against Transervice Logistics, Inc. and Zenith Logistics, Inc. seeking allegedly outstanding pension fund contributions. The case examined two consolidated appeals, each involving a nearly identical collective bargaining agreement (CBA) between each employer and a union, and trust agreements between each employer and the plaintiff fund.

COVID-19 National Emergency Plan Deadline Extensions Set to End This Summer

On January 30, 2023, President Biden announced the Administration’s plan to extend the current declarations of the COVID-19 national emergency and public health emergency (PHE) through May 11, 2023, and end both emergencies on that date. The end of the national emergency, which was originally declared in March 2020, will cause certain employee benefit plan-related deadline extensions to conclude this summer.

Specifically, under relief that the Department of Labor, the Department of the Treasury, and the Internal Revenue Service jointly provided effective March 1, 2020, the timeframes for taking the following actions were extended during the “Outbreak Period” for up to one year:

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Holiday Rush Brings Health Plans Eagerly Awaited RxDC Reporting Guidance and Relief

In FAQs Part 56, issued on December 23, 2022, the Treasury Department and the Departments of Labor and Health and Human Services (collectively, Departments) issued important guidance on prescription drug benefit and cost reporting required of health plans and issuers (collectively, health plans). The FAQ guidance includes good faith relief for the 2020 and 2021 submissions. Under the good faith relief, the Departments will not take enforcement action with respect to any health plan that uses a good faith, reasonable interpretation of the applicable regulations and instructions in making its submission. The Departments also provide a submission grace period through January 31, 2023 and will not consider a health plan to be out of compliance provided that the health plan makes a good faith submission of 2020 and 2021 data on or before January 31, 2023.

The required data submission is called prescription drug data collection, or RxDC reporting. Through RxDC reporting, health plans report certain detailed information related to prescription drug and other health care spending. Health plans are required to complete RxDC reporting annually beginning with 2020 information. Reporting for 2020 and 2021, the first years for which reporting is required, was previously delayed until December 27, 2022 and is now subject to the submission grace period through January 31, 2023. Starting with 2022 information, annual reporting is due by June 1 of the following year. While the submission grace period may have come after many health plans have already substantially completed RxDC reporting, the good faith relief is particularly good news for health plan administrators who have struggled to interpret and apply some of the requirements for the first submissions.

In addition to the good faith relief and submission grace period, the FAQs include clarifications and flexibilities to facilitate the submission process for 2020 and 2021 data only[1]:

  1. Reporting entities reporting on behalf of multiple health plans may create more than one submission for a year without the submissions being considered duplicate submissions.
  2. Multiple reporting entities may submit the same type of data file on behalf of the same health plan, which relaxes the existing requirement to consolidate a health plan’s data into a single data file for each type of data.
  3. The requirement for multiple reporting entities submitting the required data on behalf of one or more health plans in a state and market segment to aggregate required data to at least the aggregation level used by the reporting entity that submits the total annual spending data for the health plan(s) is suspended for the filings for 2020 and 2021. For 2020 and 2021 data, a reporting entity submitting the required data may, within each state and market segment, aggregate at a less granular level.
  4. A health plan or its reporting entity that is submitting only the plan list, premium and life-years data, and narrative response, but not any other data may submit the file by email to RxDCsubmissions@cms.hhs.gov instead of submitting in the Health Insurance Oversight System reporting system. The emailed submission must include the plan list file, premium and life-years data (data file D1), and a narrative response, and may include optional supplemental documents. The name of each file should include the reference year of the submission, the plan list or data file type (g. P2, D1), and the name of the group health plan sponsor.
  5. Reporting on vaccines through the National Drug Codes for vaccines that were added to the CMS drug and therapeutic class crosswalk on October 3, 2022 is optional.
  6. Reporting entities are not required to report a value for “Amounts Not Applied to the Deductible or Out-of-Pocket Maximum” in data files D2 and D6 and may leave the data fields blank in the applicable columns.

If you have questions about RxDC reporting, please contact a member of the Faegre Drinker Benefits & Executive Compensation team.

[1] The Departments will monitor compliance to determine whether to extend these flexibilities for future reporting deadlines. The Departments will communicate any such extensions.

UPDATED: Changes to a Family Member’s Exchange Subsidy Eligibility

Under Internal Revenue Code (Code) Section 36B, individuals are eligible for an exchange subsidy (or premium tax credit) if their employer has not offered them affordable coverage that provides minimum value. The IRS recently released two pieces of guidance with respect to eligibility determinations under Code Section 36B – Final Regulations under Code Section 36B and Notice 2022-41.  Under the new guidance, subsidized exchange coverage for family members will be based on the cost of employer-sponsored family coverage.  Plans that operate on a plan year other than the calendar year may be amended to permit mid-year election changes corresponding to the new exchange subsidy eligibility rules.

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EEOC Disavows Former General Counsel’s Letter on Abortion Travel Benefits

We understand a former general counsel of the Equal Employment Opportunity Commission (EEOC or Commission), Sharon Fast Gustafson, recently sent a form letter to various employers alleging that providing abortion-related travel benefits to their employees could result in unlawful discrimination. Specifically, Gustafson’s letter avers that offering abortion travel benefits without also offering travel benefits for other health conditions may constitute several types of discrimination, including pregnancy and childbirth discrimination under Title VII of the Civil Rights Act of 1964, disability discrimination under the Americans with Disabilities Act and religious discrimination.

The letter does not actually threaten any litigation and appears designed to advance Gustafson’s personal agenda. However, recipients may be concerned that Gustafson’s views could be conflated with those of the EEOC, since the letter’s opening paragraph describes Gustafson as a “recent General Counsel of the Equal Employment Opportunity Commission (EEOC) with 31 years of experience practicing primarily employment law.”

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The Annual Form 5500 Audit: DOL Broadens Criteria for Independent Qualified Public Accountants

 The Department of Labor (DOL) recently removed one regulatory hurdle for public companies that maintain employee benefit plans subject to the Form 5500 requirement. Specifically, the DOL has relaxed the criteria for who qualifies as an “independent qualified public accountant,” or “IQPA.” This matters to employers because it will open the market to new accounting firms that can issue the accountant’s report for the Form 5500 annual filing. IQPAs are the auditors who issue the annual accountant’s report. While not all Form 5500-filers are subject to the accountant’s report requirement, ERISA-covered retirement plans (except for certain small retirement plans) and funded welfare plans must provide the accountant’s report annually.

Revising and restating its 1975 Interpretive Bulletin on the Independence of Employee Benefit Plan Accountants with new Interpretive Bulletin 2022-01, the DOL has changed its guidelines for determining the “independence” of an IQPA. Previously, an auditor could not be an IQPA for a plan if they, the accounting firm, or certain other “members” of the firm owned any direct or indirect financial interest in the plan sponsor during the period covered by the financial statements that are the subject of the audit or during the period of the professional engagement.

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Navigating Open Enrollment Notice Requirements

Fall open enrollment is upon us, and plan sponsors and administrators are preparing to provide their employees with the required notices related to their health and welfare plans. Notice and disclosure obligations for health and welfare plans have become increasingly complex, with some information being required at initial enrollment and others required annually. Although insurers and third-party administrators may prepare or distribute these notices, ultimately the responsibility for compliance often rests with the plan sponsor or plan administrator.

Some of the notices routinely included in open enrollment materials are listed below.

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