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Worried About the Fiduciary Rule? Don’t Be…Yet!

March 21, 2017

Authors

benefitsbclp

Worried About the Fiduciary Rule? Don’t Be…Yet!

March 21, 2017

by: benefitsbclp

Pen Marking Days on a CalendarThe Department of Labor (DOL) released Field Assistance Bulletin 2017-01 on March 10, 2017, which outlines a temporary enforcement policy related to its final fiduciary rule.

Background

On February 3, 2017, President Trump directed the DOL to re-examine the final rule’s impact. As a result, on March 2, 2017, the DOL opened a 15-day comment period (which ended last Friday) on a proposed 60-day delay of the rule’s effective date, from April 10, 2017 to June 9, 2017.

Simultaneously, the DOL opened a 45-day comment period on the substance of the actual rule. This second comment period affords the DOL with an opportunity to review comments before June 9, 2017 (the proposed delayed effective date). At such point, the DOL could allow the final rule to take

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Just Push Pause: Revisiting Proposed Regulations

February 21, 2017

Authors

Katharine Finley and Brian Berglund

Just Push Pause: Revisiting Proposed Regulations

February 21, 2017

by: Katharine Finley and Brian Berglund

On January 20, 2017, President Trump signed an executive order entitled “Regulatory Freeze Pending Review” (the “Freeze Memo“).  The Freeze Memo was anticipated, and mirrors similar memos issued by Presidents Barack Obama and George W. Bush during their first few days in office.  In light of the Freeze Memo, we have reviewed some of our recent posts discussing new regulations to determine the extent to which the Freeze Memo might affect such regulations.

TimeoutThe Regulatory Freeze

The two-page Freeze Memo requires that:

  • Agencies not send for publication in the Federal Regulation any regulations that had not yet been so sent as of January 20, 2017, pending review by a department or agency head appointed by the President.
  • Regulations that have been sent for publication in the Federal Register but not yet published be withdrawn,
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  • The Contraceptive Saga Continues

    August 5, 2016

    Authors

    benefitsbclp

    The Contraceptive Saga Continues

    August 5, 2016

    by: benefitsbclp

    BC PillsIn Zubik v. Burwell, the justices vacated and remanded six federal appellate judgements on whether an accommodation (described below) for employers with religious objections to providing coverage for some or all contraception under the Affordable Care Act’s (ACA) preventive services coverage mandate violated the Religious Freedom Restoration Act (RFRA).  The Court took no position on the merits and stated that the parties should have the opportunity to find an approach that accommodates the petitioners’ religious exercise and ensures that women covered by the petitioners’ health plans receive full coverage for preventive care.   Essentially, as the Court awaits confirmation of a 9th justice they decided to kick the can down the proverbial road.

    Enter the Departments of Health and Human Services (HHS), Labor, and Treasury, the agencies responsible

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    Congress Engages in Some Holiday Spending on Benefits

    January 6, 2016

    Authors

    Brian Berglund

    Congress Engages in Some Holiday Spending on Benefits

    January 6, 2016

    by: Brian Berglund

    Congress’s recent $1.8 trillion holiday shopping spree (aka The Consolidated Appropriations Act, 2016, which became law on December 18, 2015) included a few employee benefit packages. We recently unwrapped the packages. Here is what we found.

    ThinkstockPhotos-86538940

    1.   Cadillac Tax Delayed. The largest present under the employee benefits tree is a delay in the so-called “Cadillac” tax, which as originally enacted imposed a 40% nondeductible excise tax on insurers and self-funded health plans with respect to the cost of employer-sponsored health benefits exceeding statutory limits. The tax is now scheduled to take effect in 2020 rather than 2018. Once – or if – the delayed tax provision becomes effective, it will be deductible. The cost of this gift is $17.7 billion.

    Since the Cadillac tax is basically unadministrable in its current form, we can’t imagine there is even one person at Treasury

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    Reacting to Our Failure to Effect Sound Retirement Policy

    December 11, 2015

    Authors

    benefitsbclp

    Reacting to Our Failure to Effect Sound Retirement Policy

    December 11, 2015

    by: benefitsbclp

    Puzzle PiecesEver since ERISA was first promulgated, and notwithstanding consequential economic, societal and demographic changes, efforts at improving the nation’s employer-based retirement structure have had fits and starts mostly due to the failure of Congress and the Nation to revisit retirement policy in a meaningful way. A cynic (or maybe a pragmatist) would surely believe that Congress’ part in failing focuses primarily on using the retirement system as a tool to exact revenue for the federal treasury, contrary to policies that enhance tax advantages for retirement saving. The smoke and mirrors of Congressional budgeting lead to intentional ignorance of most of the impact of long-term revenue from the retirement system.(To say nothing of changes to the Social Security system, which is beyond the scope of this piece.)

    ERISA was a wonderfully crafted and meaningful

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    New Final Regulations on Contraceptive Mandate Accommodation

    August 3, 2015

    Authors

    benefitsbclp

    New Final Regulations on Contraceptive Mandate Accommodation

    August 3, 2015

    by: benefitsbclp

    ACA Blue HighlightThe Departments of Health and Human Services, Labor and Treasury (the “Agencies”) recently issued the latest set of final regulations that purport to provide an accommodation for certain entities with religious objections to the ACA’s requirement that non-grandfathered group health plans provide contraceptive services.  The regulations, which were published in the Federal Register on July 14, 2015, finalize the interim final regulations published on August 27, 2014.   The regulations provide an alternative procedure for a so-called “eligible organization” to give notice of its objection to some or all contraceptive coverage and add a definition of “closely-held for profit entity” to the definition of eligible organization.

    Alternative Notice Procedure.

    In the wake of the U.S. Supreme Court’s order in Wheaton College v. Burwell, that indicated that written

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    Supreme Court’s Same-Sex Marriage Ruling in Obergefell: Effect on Benefit Plans

    July 13, 2015

    Authors

    Lisa Van Fleet and Serena Yee

    Supreme Court’s Same-Sex Marriage Ruling in Obergefell: Effect on Benefit Plans

    July 13, 2015

    by: Lisa Van Fleet and Serena Yee

    Grooms Wedding RingTwo years after recognizing same-sex marriages for purposes of federal law, the U.S. Supreme Court has gone a step further, requiring that all states recognize same-sex marriages as valid if they were valid in the jurisdiction where they were performed.  Further, states are required to license same-sex marriages no differently than opposite sex marriages.  In short, the Supreme Court struck down existing state bans on same-sex marriage.

    Effect on 401(k) Plans and Other Qualified Plans: 401(k) and other qualified retirement plans are not impacted by Obergefell, since the previous Windsor decision, along with guidance issued by the IRS following Windsor, already required qualified retirement plans to recognize same-sex spouses.  Following Windsor, same-sex marriages were to be treated no differently than opposite-sex marriages for all purposes, including automatic survivor benefits (spousal annuities),

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    “King” of the Road

    July 6, 2015

    Authors

    Chris Rylands and Lisa Van Fleet

    “King” of the Road

    July 6, 2015

    by: Chris Rylands and Lisa Van Fleet

    ACAIn Roger Miller’s 1964 hit by the above name, he tells the tale of “a man of means by no means,” a man just scraping to get by. While he may not have a phone, a pool, pets, or cigarettes (and really, what does he need that last item for anyway?), after the Supreme Court’s 6-3 decision on June 25, however, such a man might be able to secure a premium tax credit to help pay for health insurance (yes, we realize he’d probably be Medicaid eligible, but just work with us here).

    But what does the ruling mean for employers? At first, it might appear that it doesn’t mean very much; life under the Affordable Care Act will continue to move along much as it has for the last few

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    After Obergefell, Is it “Get Married Or Else”?

    July 1, 2015

    Authors

    Chris Rylands and Denise Erwin

    After Obergefell, Is it “Get Married Or Else”?

    July 1, 2015

    by: Chris Rylands and Denise Erwin

    Gavel and RingsAs has now been widely reported, the Supreme Court ruled on June 26 (the second anniversary of the Windsor decision) that same-sex couples have a right to marry in any part of the United States. Despite being hailed as a victory for marriage equality, as this New York Times article points out, it may not be such happy news for currently unwed domestic partners. Specifically, there is a concern, as the article points out, that employers who previously extended coverage to domestic partners out of a sense of equity may now decide not to since both opposite-sex and same-sex couples can now marry.

    As the article mentions, there was a concern at one time that domestic partnership rules would be used by some employees to cover individuals with whom they

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    The Anthem Breach – What Next?

    February 12, 2015

    Authors

    David Zetoony and Lisa Van Fleet

    The Anthem Breach – What Next?

    February 12, 2015

    by: David Zetoony and Lisa Van Fleet

    The facts surrounding the Anthem breach continue to evolve as does Anthem’s handling of the situation.

    Based on the current status of the investigation, and Anthem’s current reactions to the incident, there are steps which group health plan sponsors should consider taking to fulfill their own HIPAA and fiduciary obligations with respect to group health plans affected by the Anthem breach. These steps include the following:

    • Have business associate agreements and other relevant documents reviewed to assess the plan sponsor’s rights and obligations with respect to the breach.
    • Request from Anthem:
      • additional information about the breach;
      • confirmation concerning the steps that will be taken to protect the plan sponsor’s employees and affected individuals;
      • more extensive victim protection, client indemnification, and paid notification than Anthem is currently proposing to offer; and
      • confirmation that any state notification requirements will be satisfied on behalf plans
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