Over the past year, the regulatory backdrop around environmental, social and governance (ESG) investing has shifted. As McDermott Partner Brian J. Tiemann explains in these slides, the US Department of Labor (DOL) under the Trump administration dropped ESG terminology and set a high standard for considering factors other than purely financial projections for investment alternatives. However, the Biden administration’s DOL has said that it will not enforce Trump-era regulations or pursue enforcement actions against plan fiduciaries for failure to comply with those regulations.
On October 4, 2021, the US Departments of Labor, Treasury, and Health and Human Services issued guidance regarding the application of the Health Insurance Portability and Accountability Act (HIPAA) wellness rules to vaccine-related premium surcharges and discounts, clarifying that employers may charge vaccine premium incentives if they adhere to the requirements of activity-only health-contingent programs.
Employers have grown more interested in exploring incentives designed to increase COVID-19 vaccination rates among employees. Some employers have announced plans to charge unvaccinated employees higher contributions for health coverage than vaccinated employees, while some have been considering other options, such as excluding coverage for COVID-related illnesses, charging higher cost-sharing for COVID-19-related illnesses and offering more generous plan options to employees who are vaccinated.
Missing participants and cybersecurity are among the top challenges for retirement plan advisors, according to participants at the National Association of Plan Advisors’ 2021 NAPA 401(k) Summit in Las Vegas. During the Summit’s opening day workshop session, McDermott Partner Erin Turley said advisors should make an effort to discuss cybersecurity with clients in advance of a US Department of Labor audit.
“The plan document says X, the recordkeeping agreement says Y, and maybe the (summary plan description) says something different—if it’s even addressed in the SPD,” Turley noted. “So make sure all those documents sync and your process actually matches your documents as equally.”
The US Department of Labor (DOL) is casting a skeptical eye on health insurance companies’ inconsistent coverage of mental health and substance use disorder benefits. The DOL recently commenced litigation against an insurer to require mental health and substance use disorder coverage be on par with regular physical care.
In an article in Bloomberg Law, McDermott Partner Judith Wethall said employers are usually unaware about these violations. Self-funded employers typically simply accept whatever their third-party administrator (TPA) is offering.
“Sometimes a TPA does things behind the scenes that might violate mental health parity and an employer might not even know it,” Wethall said.
What steps can retirement plan sponsors take to mitigate Employee Retirement Income Security Act of 1974 litigation risks? McDermott Partner Andrew Liazos presented on this topic and shared best practices during the Plan Sponsor Council of America’s National Conference.
Even though it is the employer’s responsibility to track down former employees and let them know of leftover retirement benefits, it doesn’t always work out that way. In recent years, the US Department of Labor’s Employee Benefits Security Administration has demanded companies improve their methods for finding former workers.
In this article published by the Center for Retirement Research at Boston College, McDermott Partner Jeffrey M. Holdvogt said regulators “put a lot of pressure, in a good sense, on plan administrators to really up their games.” Holdvogt shared his comments in a May webinar hosted by the Pension Action Center at the University of Massachusetts, Boston.
While many of the United States’ largest corporations don’t oppose the Biden administration’s vaccine requirements for many employers, those companies say many of their questions about the administration’s rule have gone unanswered. The new rule requires employers with more than 100 employers to mandate COVID-19 vaccinations or require weekly testing of employees.
In an article published in The Hill, McDermott Partner Michelle Strowhiro said some employers may decide to scrap the testing alternative altogether.
“Administratively, it’s going to be quite burdensome for employers, especially large employers with hundreds or thousands of employees, to track weekly the testing results for employees,” Strowhiro said.
What can employee stock ownership plan (ESOP) managers due to prepare an effective record in advance of a potential US Department of Labor or Internal Revenue Service investigation? McDermott Partner Allison Wilkerson presented on this topic during The ESOP Association‘s TEA National 2021 Conference.
Companies curious about a major airline’s unvaccinated healthcare premium surcharge are discovering that it may be too complex to copy. The airline recently announced that unvaccinated employees enrolled in the company’s health plan would see a $200 monthly surcharge. In this Bloomberg Law article, McDermott Partner Judith Wethall said the compliance hurdles are “tricky and kind of dilute the message.”
The US Departments of Health and Human Services, Treasury and Labor, and the Office of Personnel Management issued an Interim Final Rule with comment implementing portions of the No Surprises Act, legislation enacted in December 2020 that bars surprise billing beginning January 1, 2022. Under the law, payers and providers (including hospitals, facilities, individual practitioners and air ambulance providers) are prohibited from billing patients more than in-network cost-sharing amounts in emergency and non-emergency circumstances. This IFR establishes regulations defining the payment methodology. The regulation proposes the methodology payers must use to determine cost sharing; the information payers must share with out-of-network providers; the process for submitting and receiving consumer complaints; and the format and details of the notice and consent requirements.
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