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How Pending Fishing Boat Cases at the Supreme Court Could Rock the Benefits Plan Boat

If the US Supreme Court strikes down the established doctrine of significant judicial deference to certain government agency interpretations in two upcoming fishing boat cases, this decision could have ripple effects on employee benefit plan sponsors and fiduciaries. Such a decision would rock the boat and create more uncertainty in administering employee benefits.

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McDermott Submits Amicus Brief to the US Supreme Court in United Behavioral Health

On January 2, 2024, McDermott filed an amicus curiae brief on behalf of the ERISA Industry Committee (ERIC) and the United States Chamber of Commerce (Chamber) in United Behavioral Health v. David K., No. 23-586, in the US Supreme Court. The case presents two questions of broad public importance concerning the requirements under the Employee Retirement Income Security Act (ERISA) for denials of health benefits. But underlying the two questions is an even more fundamental Administrative Procedure Act (APA) issue: May a court, at the invitation of an agency in an amicus brief, effectively amend regulations by judicial fiat, providing the agency with an end run around the APA’s notice-and-comment rulemaking procedures?

The answer to that question should be an obvious no. But that is precisely what happened in the court of appeals in this case. After the plaintiffs filed their response brief, the US Department of Labor (DOL) filed an amicus brief urging a radically new interpretation of regulations the agency had promulgated to implement ERISA’s procedural protections. In essence, the DOL argued that its disability- and health-benefit regulations should be read to contain the same procedural requirements, despite clear regulatory language specifying that some requirements only apply in one context and not the other. The US Court of Appeals for the Tenth Circuit adopted the DOL’s position, decreeing a new regulatory requirement for health-benefit denials that the DOL, in dual 2015 and 2016 rulemakings, expressly considered and chose to adopt only for disability-benefit denials and not for health-benefit denials.

If not corrected by the Supreme Court, the decision will stand as an invitation to agencies to file amicus briefs in the courts of appeals, advocating for substantial changes to their regulations without the bother (or transparency) of APA rulemaking. When so much lawmaking today is undertaken by unaccountable federal bureaucrats, that is a deeply troubling prospect. ERIC and the Chamber supported the petition, explaining the legal and practical issues with the approach the DOL and Tenth Circuit mutually took. Agency interpretations that defy clear regulatory text are entitled to no deference because they are invalid (especially after the Court’s decision in Kisor v. Wilkie). Ignoring this basic proposition of administrative law undercuts the core values served by the APA, including transparency and accountability. Most directly, however, an agency’s decision to seek backdoor revisions to its rules through interpretations announced in litigation deprive the agency of the benefit of public comment that can provide critical data and analysis to inform the agency’s policymaking. Had the DOL engaged in notice and comment, as it should have done, commenters would have presented key distinctions between the disability- and health-benefit contexts; without that information, the DOL’s decision was not fully informed.

ERIC and the Chamber are frequent amici in cases concerning ERISA and the APA’s interpretation and requirements. While the Supreme Court grants only a tiny fraction of the petitions it receives each term, the amici are hopeful that this brief will help focus the Court’s attention on this [...]

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Webinar Replay: SECURE 2.0 and the Impacts of Employer Matching for Student Loan Payments

Student loan debt is set once again to impact millions of American workers. Fortunately, starting next year, employers will have new ways to help employees navigate student loan debt. Provisions of the SECURE 2.0 Act will allow employers to provide employer-matching contributions based on their employees’ qualified student loan repayments outside the plan.

In this webinar, McDermott’s Jeffrey M. Holdvogt and Teal N. Trujillo were joined by Tom Robertson C(k)P® of Graystone Consulting for a discussion exploring how organizations can provide this exciting new benefit to their workforces and leverage this important tool to increase employee satisfaction and retention.

Topics included:

  • Reasons why your organization should consider student loan debt/repayment benefits
  • Options available to employers to provide tax-advantaged benefits related to student loan debt and repayment
  • Key aspects of the SECURE 2.0 Act related to student loan repayment benefits as part of an employee retirement plan
  • Questions, challenges and tips for employers implementing a SECURE 2.0 student loan benefit in their retirement plans

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SECURE 2.0: The Impacts of Employer Matching for Student Loan Payments

Following the US Supreme Court’s rejection of substantial portions of the Biden administration’s plans for student loan debt relief, and with the end of the student loan repayment moratorium in sight, student loan debt is set once again to impact millions of American workers. Fortunately, starting next year, employers will have new ways to help employees navigate student loan debt. Provisions of the SECURE 2.0 Act will allow employers to provide employer-matching contributions based on their employees’ qualified student loan repayments outside the plan.

On September 12, 2023, join McDermott Will & Emery lawyers Jeffrey M. Holdvogt and Teal N. Trujillo as well as Tom Robertson C(k)P® of Graystone Consulting for a live webinar exploring how your organization can provide this exciting new benefit to your workforce and leverage it to increase employee satisfaction and retention.

Covered topics will include:

  • Reasons why your organization should consider student loan debt/repayment benefits
  • Options available to employers to provide tax-advantaged benefits related to student loan debt and repayment
  • Key aspects of the SECURE 2.0 Act related to student loan repayment benefits as part of an employee retirement plan
  • Questions, challenges and tips for employers implementing a SECURE 2.0 student loan benefit in their retirement plans

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How Dobbs Has Changed the Data Privacy Landscape

Companies are taking a fresh look at their privacy policies in the wake of Dobbs v. Jackson Women’s Health Organization. According to this Law360 article, policymakers are putting more pressure on companies to tighten their restrictions on collecting and disclosing personal health and location data.

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From Clinic to Courtroom: Legislation and Litigation Limiting Prescription Practices

On April 20, 2023, McDermott’s Alden Bianchi was a speaker at the ERISA Industry Committee’s 2023 Annual Spring Policy Conference, which was held at the National Press Club in Washington, D.C. The panel in which he participated was entitled “From Clinic to Courtroom – Legislation and Litigation Limiting Prescription Practices,” and it covered three main topics: state regulation of telehealth; the regulation of specialty pharmacy supply chains and delivery measures (“brown bagging,” “white bagging” and “clear bagging”); and state-level efforts to regulate pharmacy benefit managers (PBMs) following the US Supreme Court’s 2020 Rutledge decision, which held that an Arkansas law regulating the costs of prescription drugs was not preempted by the Employee Retirement Income Security Act of 1974 (ERISA).

Here are some of the program’s key takeaways and predictions:

  • While telehealth is here to stay, the high cost of Medicare reimbursements presents an immediate barrier to widespread adoption, and the particulars of how telehealth will be regulated will be left largely to the states.
  • The battle over the delivery of specialty prescription drugs is heating up as PBMs seek to capture some of the margins previously available only to providers. State laws regulating pharmacies and pharmacists will be at the center of the battle, and future legislative efforts will likely be subject to challenge.
  • State legislatures have read the Rutledge decision broadly in ways that virtually guarantee a good deal of future litigation. It might take as long as a decade, and it may well take more than one trip to the Supreme Court before plans, issuers, providers, state legislators and regulators, and other stakeholders have a reliable understanding of the contours of ERISA preemption in the pharmacy context.

Accompanying this post are copies of Mr. Bianchi’s panel materials, including:




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OCR Issues Proposed Rule to Modify HIPAA Privacy Rule to Include Explicit Protections for Reproductive Healthcare

On April 12, 2023, the US Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a notice of proposed rulemaking detailing its proposal to modify the HIPAA Privacy Rule (Proposed Rule). The Proposed Rule comes as a part of the Biden administration’s response to the US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization.

The Proposed Rule would provide special protections for protected health information (PHI) related to reproductive healthcare. Following the Dobbs decision, many healthcare providers expressed concerns that PHI related to reproductive healthcare may be sought by state and local governments for use in criminal, civil or administrative investigations or proceedings. OCR noted that such compelled uses and disclosures of PHI could have a chilling effect on lawfully obtained healthcare and erode trust in confidential communications between a patient and provider. Additionally, providers could elect to leave out critical details from a patient’s medical record if they fear the information could later be used by a state or local government actor against the patient.

Stakeholders may submit comments on the proposed rule on or before June 16, 2023.

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What the Potential Shutdown of Biden’s Loan Forgiveness Plan Could Mean for Plan Sponsors

As the US Supreme Court deliberates on the Biden administration’s loan forgiveness plan, what is the recommended course of action for plan sponsors regarding student loan repayment programs? In this PLANSPONSOR article, McDermott Partner Jeffrey M. Holdvogt offers insight into student loan debt benefits through the Coronavirus Aid, Relief and Economic Security Act.

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US Supreme Court Rules Highly Compensated Employee Is Not Exempt from Overtime

On February 22, 2023, the US Supreme Court held in Helix Energy Solutions Group, Inc. v. Hewitt that an employee who was paid nearly $1,000 each day he worked was not exempt from the Fair Labor Standards Act (FLSA) and therefore owed overtime for the work he did. This case turned on an interpretation of the FLSA regulations, which exempt from the overtime requirement certain bona fide executive, administrative and professional employees.

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Respect for Marriage Act Would Protect Same-Sex Couples’ Company Benefits

The Respect for Marriage Act would preserve the company benefits of same-sex couples. The legislation, which passed the US Senate on November 29, was inspired by concerns that the US Supreme Court might reconsider its landmark same-sex marriage decision.

In this SHRM articleMcDermott Partner Todd Solomon noted that federal and state law no longer distinguish between same-sex or opposite-sex marriages.

“Same-sex spouses must be extended spousal benefit coverage by employers” for fully insured health plans, Solomon said.

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