Reminder: Gag Clause Attestations Due by Year-End

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.”

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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 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.

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Thinking ESOPs: Fourth Circuit Narrows Equitable Relief Under ERISA

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.

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Waggeh v. Guardian Highlights Importance of Governing Documents in ERISA Disputes

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.

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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, ERISA Moments: What Will be in the New DOL Fiduciary Proposal: Our Thoughts, below.

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ERISA Moments: The DOL’s New Fiduciary Proposal is at the OMB: What’s Next?

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.

Introducing ERISA Moments: Bite-Size Vodcasts on the Latest ERISA Developments

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.

Or Watch the Video here

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.

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

Following a bench trial in a Pennsylvania federal district court in Nunez v. B. Braun Medical, Inc., 401(k) plan fiduciaries defeated a lawsuit alleging that the fiduciaries imprudently managed and paid excessive recordkeeping and investment management fees. The B. Braun Medical fiduciaries’ win follows on the heels of a jury trial win by fiduciaries 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. Consistently creating and maintaining detailed records regarding the initial selection and ongoing monitoring of vendors and investment options will help the committee defend those decisions later.

In Nunez, the court found that both the processes and the outcomes with respect to the plan’s recordkeeping and investments were objectively prudent—the opposite of which the plaintiffs would be required to prove to win their case.

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

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. (For an overview of SECURE 2.0 for defined contribution plan sponsors, click here.)

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