In an Information Letter dated February 27, 2019, the Department of Labor (DOL) clarified that an ERISA plan must include any procedures for designating authorized representatives in the plan’s claims procedure and summary plan description (SPD) or in a separate document that accompanies the SPD. In response to a request by a patient advocate and health care claim recovery expert for plan participants and beneficiaries, the DOL reiterated that the claims procedure regulations permit authorized representatives to receive notifications in connections with an ERISA plan’s claim and appeal determinations, and noted that a plan’s claims procedure cannot prevent claimants from choosing who will act as their representative for purposes of a claim and/or appeal. ERISA plan sponsors should review plan documents to ensure that the applicable documents clearly outline any steps a participant or beneficiary must take to validly designate an authorized representative under the plan.

In a presentation at McDermott’s Employment and Employee Benefits Forum, Jeffrey Holdvogt discussed qualified plans, including student loan repayment benefits and the rise of DOL/IRS/PBGC plan activity. He also commented on the scrutiny on plan governance and fiduciary process materials. He addressed the legal challenges and mandates, such as state laws protecting against balance billing by out-of-network providers.

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What to expect in 2019 and how to prepare now. Join McDermott lawyers Judith Wethall, Ted Becker and Rick Pearl for an interactive discussion regarding ERISA litigation trends.

Join our lively 45-minute discussion while we tackle the following items:

  • Plaintiffs’ law firm’s solicitations
  • Health & Welfare Fee Litigation
  • Defined-Benefit Plan Litigation – Actuarial Equivalence lawsuits and greater concern about discretionary decisions
  • Stock-Drop Cases – The Jander decision: Relaxing the Dudenhoeffer standard and the potential impact of a stock market decline
  • 401k/403b – Fee/investment update
  • ESOP transactions – New DOL and plaintiffs’ counsel’s theories

Friday, January 11, 2019
10:00 – 10:45 am PST
11:00 – 11:45 am MST
12:00 – 12:45 pm CST
1:00 – 1:45 pm EST

Register now. 

Join us Friday, November 2 for our monthly Fridays with Benefits webinar. With 2019 right around the corner, now is the time to dust off your year-end checklist and take stock of changes we have seen in 2018, and how they project to impact planning for the new year. Join us for an interactive discussion designed to draw attention to the key employee benefits issues you should tackle before New Year’s Eve. Our lively 45-minute discussion will include a tax reform update, an overview of retirement plan disaster relief, responding to new disability regulations from the DOL, and how to implement final regulations on QNECs and QMACs.

Friday, November 2, 2018
10:00 – 10:45 am PDT
11:00 – 11:45 am MDT
12:00 – 12:45 pm CDT
1:00 – 1:45 pm EDT

Register now.

During the Tax in the City event held in Dallas, Erin Turley and Allison Wilkerson gave an overview of benefit plan audits and the IRS examination process. They discussed various areas of focus, including, required minimum distributions, investment issues, benefit calculations and appropriate tax reporting. They provided attendees with best practices before an audit, as well as helpful resources from the IRS and DOL.

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Socially responsible investing often sounds like an intriguing idea, but investing plan assets in a socially responsible manner is a notoriously tricky proposition. Earlier this year, the US Department of Labor issued additional guidance clarifying existing DOL guidance applicable to socially responsible investment of plan assets. However, the clarifications included in FAB 2018-01 may further limit the scenarios in which socially responsible investing could be considered prudent under the Employee Retirement Income Security Act of 1974, as amended (ERISA).

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During the most recent Tax in the City event in Dallas, Partners Erin Turley and Judith Wethall, presented on the rise of consumer driven health care. Some popular programs they discussed include wellness, smoking cessation, high deductible health plans and HSAs, telemedicine, direct contracting and affordable care organizations. They also discussed the compliance complexities associated with these programs, including ERISA, FLSA and HIPAA privacy concerns.

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The US Department of Labor published a final rule that makes it easier for a group or association of employers to act as a single “employer” sponsor of an Association Health Plan under ERISA. By creating an opportunity for small employers and self-employed individuals to take advantage of the economies of scale that are usually enjoyed by large employers, the final rule is intended to expand access to affordable health care.

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The Department of Labor’s fiduciary rule has recently been rendered unenforceable following a recent 5th Circuit Court of Appeals decision. In an article published by the Society for Human Resource Management, McDermott partner Brian Tiemann weighs in on what this means for plan sponsors. “As a result of the Fifth Circuit’s ruling, the suitability standard is effectively restored” for advising plan participants on investments, distributions and rollovers, Tiemann observed. He also points out that advisors may want to revise service agreements with plan fiduciaries to clarify the scope of advice that fiduciaries will provide participants.

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Originally published by the Society for Human Resource Management, May 2018.

ESOP transactions continue to grow in sophistication as sellers, plan sponsors and fiduciaries seek to meet certain goals and regulatory requirements. Allison Wilkerson, and other panelists for this presentation, reviewed a number of advanced transaction structures that are being utilized more and more to address specific needs identified by one or more of the parties involved in the arrangement. Such structures include the use of warrants in a financing structure, implementation of clawback and/or earn out requirements, use of incentive plans for successive management, and provisions that may be impactful with respect to future transaction or planning.

This presentation provides information to those companies/sellers/ESOP fiduciaries who are pursuing an ESOP transaction with alternatives that may provide an opportunity to better address the goals and objectives of the shareholders, ESOP, Company, employees and other stakeholders.

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