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HHS Finalizes Anti-Discrimination Revisions to ACA Section 1557

On June 12, 2020, the Office for Civil Rights (OCR) of the US Department of Health and Human Services (HHS) finalized a rule under Section 1557 of the Patient Protection and Affordable Care Act (the 2020 Final Rule) that rescinds certain protections afforded to LGBTQ individuals and persons with limited English proficiency. At the same time, the 2020 Final Rule removes burdensome disclosure requirements that may be a welcome relief for entities covered by Section 1557. On June 15, 2020, the Supreme Court of the United States ruled that workplace discrimination based on gender identity and sexual orientation is forbidden under Title VII of the Civil Rights Act of 1964. Although Title VII is not included in the precedential civil rights laws that gave rise to Section 1557, we nevertheless anticipate that the Supreme Court’s holding will lead to legal challenges in a number of areas, including healthcare and health insurance, religious exemptions and the 2020...

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Finally SECURE: Opportunities in the 2019 SECURE Act for Plan Sponsors

The SECURE Act—the most significant piece of retirement plan legislation in more than a decade—is now law. Plan sponsors should immediately start considering how changes included in the SECURE Act could impact their retirement and health and welfare plans in 2020 and beyond. Access the full article.

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Fifth Circuit Issues ACA Ruling, But Severability Question Remains

A decision in Texas v. United States was issued by a divided three-judge panel of the US Court of Appeals for the Fifth Circuit on December 18, 2019. This case presented once again the question whether the Affordable Care Act (ACA) is constitutional and sustainable, and questions of severability remain for the near future. Access the full article.

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Transgender Health Benefits: Best Practices and Legal Considerations

A growing number of medical organizations, courts and administrative bodies have stated that transition-related medical care is medically necessary and should be covered by employer-sponsored medical plans. Access to employer-sponsored healthcare coverage for transgender workers has become an issue of focus for civil rights advocacy groups such as Lambda Legal and the American Civil Liberties Union, and there has been an uptick in discrimination lawsuits filed against health plans and insurers denying such care. These trends highlight the importance of weighing the legal and business considerations that come with providing (or not providing) comprehensive health benefits for transgender workers. Health plan sponsors and insurers should consider how the decision to provide or exclude transition-related medical coverage will affect their legal compliance, overall costs and workplace culture—all of which are discussed in this article. Access the full article....

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Third Circuit Upholds Decision Blocking Trump Administration’s Birth Control Rules

A Third Circuit appeals panel upheld the lower court ruling in Commonwealth of Pennsylvania v. President United States of America et al. No. 17-3752. This ruling grants a nationwide preliminary injunction against the religious and moral exemptions for employers to the ACA's birth control mandate, so employers may want to take a cautious approach toward limiting contraceptive coverage. Access the full article. Teal Trujillo, a summer associate in our Chicago office, also contributed to this article.

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SCOTUS Refuses to Review Ninth Circuit Ruling on ACA Birth Control Rules

The US Supreme Court declined to review a recent Ninth Circuit decision, blocking the interim rules that exempted employers with religious or moral objections from providing birth control coverage required by the Affordable Care Act (ACA). Until such time as this issue is clarified, it is prudent for employers with employees in certain states to comply with the ACA mandate and to cover contraceptives under their health plans. Access the full article. Teal Trujillo, a summer associate in our Chicago office, also contributed to this article.

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HHS Proposes Changes to 2016 Regulations for ACA Non-Discrimination Rule

On Friday, March 24, 2019, the US Department of Health and Human Services issued a proposed rule (along with a related fact sheet) under Section 1557 of the Affordable Care Act (ACA) that would make significant changes to the final regulations issued in 2016. Section 1557, in effect since the ACA was enacted in 2010, provides that an individual shall not—on the grounds prohibited under Title VII of the Civil Rights Act of 1964 (race, color, national origin), Title IX of the Education Amendments of 1972 (sex), the Age Discrimination Act of 1975 (age) or Section 504 of the Rehabilitation Act of 1973 (disability)—be excluded from participation in, be denied the benefits of or be subjected to discrimination under any health program or activity, any part of which is receiving federal financial assistance, or under any program or activity that is administered by an agency established under Title I of the ACA. The proposed rule addresses a broad range of changes to...

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Court Puts Association Health Plans in Limbo

On March 28, a District of Columbia federal court agreed with a New York-led challenge by a group of 11 states and the District of Columbia and found that the Department of Labor’s (DOL) 2018 association health plan (AHP) rule (the Final Rule): Is contrary to the Employee Retirement Income Security Act of 1974 (ERISA)’s text and purpose; and Circumvents the protections and standards of the Affordable Care Act (ACA). The decision, penned by Judge Bates, may act to deal a significant blow to the Trump administration’s attempt to expand coverage for small employers. Crafted in response to the October 12, 2017, executive order directing the DOL to promote the availability of AHPs, the Final Rule materially relaxed the standards for qualifying as an AHP under ERISA. As further described here, the Final Rule sets forth the criteria pursuant to which a “bona fide group or association of employers” may establish a single-employer AHP under ERISA. Under the Final...

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Event | Benefits Emerging Leaders Working Group

Join us on March 7 in Chicago for our annual Benefits Emerging Leaders Working Group, which provides benefit professionals with tools to better serve employees in an ever-changing benefits landscape. Our presentations will tackle the latest benefits hot topics and best practice solutions and will be supplemented with important networking opportunities aimed to connect tomorrow’s benefit leaders with a broad network of professionals. Speakers from The Art Institute of Chicago, Alera Group Inc. and McDermott will lead interactive discussions around a range of topics, including: Affordable Care Act (ACA) Penalties – Marketplace Letters Investment Committee Meetings – Red Flags and Best Practices Developments in Parental and Caregiver Leaves – A Case Study Approach Legislative Rundown – What’s Happening in Washington Around the Horn – A Group Discussion Register Now.

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Worker Classification: Complications Beyond the Front Page

When California’s Dynamex decision rolled out the “ABC test”, it placed the burden on the employer to prove independent contractor (IC) status. In a presentation at the Employment and Employee Benefits Forum in California, McDermott’s lawyers discussed the implications of Dynamex, as it applies to various types of employers as well as those using staffing companies. Additionally, they cover Dynamex’s impact on worker classification and employee benefits plans, particularly under ERISA. Lastly, they provide best practices that employers can do now to prevent litigation. View the full presentation.

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