Update – A Rule Deferred: Department of Labor Delays Implementation of Fiduciary Rule

As we previously reported in our February 16, 2017 blog post, “A Rule Deferred: Department of Labor Delays Implementation of Fiduciary Rule,” the DOL anticipated delaying the effective date of the fiduciary rule by 180 days.  However, on March 1, 2017, the DOL proposed to delay the fiduciary rule by 60 days, citing the potentially high costs of further delay.

The fiduciary rule was originally scheduled to become effective April 10, 2017. The new proposal would delay the rule’s applicability until June 9, 2017.

The DOL will accept public comments on the proposal to extend the applicability date for a period of 15 days, through March 17, 2017. Read More ›

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Trumping the Affordable Care Act? Not So Fast – Impact of Executive Order on Employers Unclear

On January 20, 2017, President Trump signed an Executive Order (“Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” hereinafter referred to as the “Order”) relating to the future of the Affordable Care Act (“ACA”).  The stated goal is to direct the agencies (IRS, HHS, and DOL) to waive or defer provisions of the ACA that would “impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products or medications.”  Notoriously absent from this list is any mention of employers or plans.  Read More ›

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Departments Finally Publish Updated SBC Template and Instructions

On April 6, 2016, the Departments of Health and Human Services, Labor and Treasury (the “Departments”) issued an updated Summary of Benefits and Coverage (“SBC”) template.  The latest template represents an effort by the Departments to enhance consumer access to information regarding their health care options.

Although the new template is shorter than the prior version, it includes more detailed information about cost-sharing, deductibles and out-of-pocket limits.  Moreover, the template adds a new example describing coverage for an in-network emergency room visit.  The Departments intend that these additions will provide consumers with more meaningful information as they select their medical coverage.           Read More ›

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Five Lawsuits Filed Against DOL’s Fiduciary Rule (so far)

As we previously discussed in our May 19, 2016 SW Benefits Update, the Department of Labor (“DOL”) recently issued final regulations on fiduciary conflicts of interest in retirement programs.  Since 2010 when the DOL first proposed regulations addressing self-interested advice to retirement plan and IRA participants, the rule has been widely criticized by some in the financial services industry as being overly broad.

Both Congress and industry and trade groups have been unhappy with the DOL’s rulemaking in this area and have threatened further action since the rule was first proposed. On May 24, the Senate passed a resolution to block the fiduciary rule, which President Obama vetoed on June 8. Read More ›

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Five Ways to Survive a Department of Labor (“DOL”) Health and Welfare Plan Investigation

DOL health and welfare plan investigations are on the rise. There are best practices for plans chosen for investigation:

 1.  Get Employee Benefits Counsel Involved Early.

The DOL investigation process generally starts with a letter from DOL requesting a long list of documents that range from plan documents and disclosures to financial documents (e.g., trust agreements and bank statements). This letter can be overwhelming, not only because of the sheer quantity of documents that must be produced in a relatively short time period, but also because many of the requests may be broad, vague, or even inapplicable to your plan.

Working with employee benefits counsel from the beginning may help you respond.  Read More ›

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State of Celebration Standard Now in Effect for FMLA

In a previous blog, I wrote about regulations issued by the Department of Labor (“DOL”) proposing to revise the regulatory definition of “spouse” under the Family and Medical Leave Act (“FMLA”) to be based on the law of the place where a marriage was performed, which is known as the “state of celebration” standard.  The DOL finalized the proposed regulations by issuing a Final Rule on February 25, 2015.

Effective March 27, 2015, the regulatory definition of “spouse” under the FMLA was changed from a “state of residence” standard to a “state of celebration” standard.  This means that employers must now look to the law of the place in which the marriage was performed rather than the law of the state in which the employee resides.  Read More ›

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DOL Issues Final Rules on Annual Funding Notice for Defined Benefit Plans

The Department of Labor recently issued final regulations implementing the annual funding notice that defined benefit plans are required to provide under Section 101(f) of ERISA.  The final regulations are similar to the proposed regulations and the guidance issued in Field Assistance Bulletin 2009-01 and Field Assistance Bulletin 2013-01.

Generally, administrators of defined benefit plans must furnish a funding notice each year to the Pension Benefit Guaranty Corporation (“PBGC”), each participant and beneficiary, each labor organization representing such participants or beneficiaries, and, in the case of a multiemployer plan, each employer that has an obligation to contribute to the multiemployer plan.  Read More ›

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FMLA to Apply to All Employees in Same-Sex Marriages

When the U.S. Supreme Court declared DOMA unconstitutional in United States v. Windsor, many federal benefits that were previously denied to individuals in same-sex marriages became available to those individuals.  However, job-protected leave under the Family and Medical Leave Act (“FMLA”) was not one of them.

Generally, an employee is able to take 12 weeks of unpaid, job-protected leave to care for a sick family member (including a spouse).  For purposes of FMLA, “spouse” is defined as a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides.  This is known as the “state of residence” standard, which means that an employee validly married to a same-sex spouse cannot receive FMLA protections if they live in a state that does not recognize same-sex marriage. Read More ›

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The IRS Meant What It Said in Notice 2013-54 – Employers Who Pay For Individual Health Insurance Policies for Employees On a Pre-Tax Basis Face Massive Penalties

In our 2013 End of Year Plan Sponsor “To Do” List  Part 2 – Health and Welfare I did a lengthy summary of the various changes required to employer health care arrangements on account of IRS Notice 2013-54.  On May 6, 2014, I followed that up with a blog entitled Non-integrated health reimbursement arrangements (whatever they are called) are subject to $36,500 per-participant per-year penalty.  I am compelled to follow-up with yet another blog regarding the importance of IRS Notice 2013-54.

On May 13, 2014, the IRS issued two very direct Q&As about the impact of Notice 2013-54 on employers who pay for individual health insurance policies for employees on a pre-tax basis.  Read More ›

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Plan Fiduciaries Get an Assist from the DOL

Since 2012, covered service providers (“CSPs”) such as recordkeepers and investment advisors have had to provide annual service and fee disclosures to plan fiduciaries under Section 408(b)(2) of ERISA.  Plan fiduciaries cannot remain idle after receiving these disclosures —  review of the disclosures is a fiduciary duty.  The Department of Labor (“DOL”) requires fiduciaries to review the disclosures to make sure that the services provided are appropriate and the fees charged are reasonable.  If the disclosures are not complete, the fiduciaries have an affirmative obligation to request the missing information from the CSP or report the CSP to the DOL if the information is not provided upon request.  Read More ›

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