Resources

Below are our compliance resource postings over the last 6 months. For your convenience the sections are color-coded in chronological order. Orange Compliance Alerts discuss new guidance interpreted by our staff ERISA attorney and team. U.S. Policy postings represent new state and Federal laws and In the News articles convey current commentary from reputable news outlets.

03.01.2023
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02.09.2023
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12.28.2022
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12.27.2022
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12.16.2022
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11.29.2022
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10.20.2022
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09.30.2022
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09.15.2022
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08.18.2022
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08.04.2022
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08.02.2022
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07.22.2022
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06.27.2022
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06.13.2022
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05.06.2022
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05.04.2022
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03.17.2022
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01.14.2022
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01.11.2022
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12.21.2021
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12.07.2021
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12.03.2021
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11.19.2021
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11.16.2021
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11.11.2021
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11.05.2021
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10.07.2021
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10.04.2021
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09.20.2021
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08.30.2021
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08.26.2021
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08.06.2021
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07.30.2021
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07.09.2021
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06.03.2021
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05.20.2021
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05.13.2021
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05.04.2021
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04.08.2021
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04.05.2021
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03.11.2021
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03.08.2021
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03.02.2021
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03.01.2021
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02.24.2021
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02.01.2021
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12.28.2020
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11.12.2020
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11.09.2020
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10.29.2020
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10.23.2020
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10.06.2020
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10.06.2020
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10.1.2020
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09.23.2020
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09.17.2020
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08.21.2020
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08.20.2020
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08.19.2020
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08.7.2020
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07.10.2020
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06.29.2020
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06.22.2020
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06.18.2020
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06.12.2020
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06.10.2020
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05.28.2020
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05.28.2020
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05.15.2020
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05.4.2020
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05.4.2020
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04.24.2020
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03.30.2020
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03.27.2020
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03.26.2020
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03.25.2020
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03.25.2020
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03.20.2020
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03.20.2020
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3.17.2020
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03.12.2020
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02.20.2020 revised from 11.18.2019
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For earlier Compliance Alerts, please contact your Corporate Synergies Account Manager.​

DEA and HHS Proposed Rules Would Limit Telehealth Prescriptions for Some Drugs
02.24.2023 — The Drug Enforcement Administration (DEA) and Dept. of Health and Human Services (HHS) have issued proposed rules that would ban with only limited exceptions the prescription of controlled substances like opioids and ADD medication via telehealth, unless in-person visits are not possible due to certain circumstances. The agencies hope the new rules will allow for better monitoring and abuse prevention. The public has 30 days to review and comment on the proposals.
Proposed Rule DEA-948 »
Proposed Rule DEA-407 »
DEA Press Release »
Axios »

Agencies Issue Guidance on CAA “Gag Clause” Reporting Requirement
02.23.2023 — The Departments of Labor, Health and Human Services, and the Treasury (Agencies) have issued FAQ guidance under the Consolidated Appropriations Act, 2021 (CAA) requiring group health plans and insurers to annually attest that they have not included any “gag clauses” in their contracts with healthcare providers, TPAs and other plan service providers. Gag clauses prevent providers from sharing certain cost, quality and claims information with plan participants. This certification is made through a “Gag Clause Prohibition Compliance Attestation” (GCPA) form submitted by December 31 each year (beginning December 31, 2023). Plan sponsors should review their contracts with plan service providers and ensure that gag clause provisions have been removed.
CMS “Gag Clause” Guidance »
HIOS portal »

Air Ambulance Reporting Under the NSA Not Required in 2023
02.21.2023 — The No Surprises Act (NSA) requires group health plans and health insurers to report certain information on plans’ air ambulance services to federal agencies. Proposed regulations under the NSA issued in September, 2021, had indicated that the first reporting deadline would be March 31, 2023 for 2022 calendar-year reporting. However, since final regulations have not yet been issued, no reporting is required in 2023.
Proposed Regulations »

Agencies Issue Proposed Rules Expanding Coverage under the ACA for Contraceptive Services
02.02.2023 — The Department of Health and Human Services, the Department of Labor and Treasury released proposed rules eliminating the moral exemption to the ACA’s contraceptive mandate that was set forth in final rules issued in 2018. The rules also propose a new option which allows individuals whose plans are sponsored by objecting entities to access contraceptive care at no cost through a willing contraceptive provider. The objecting entity is not required to take any action to facilitate this coverage, and the contraceptive provider may seek reimbursement for these costs.
Proposed Rules »

President Biden Issues Statement Declaring Intent to End COVID-19 National and Public Health Emergencies on May 11
01.30.2023 — Both emergency periods are to end on May 11 giving 60-days’ notice prior to termination of the PHE. Recently, the Department of Health and Human Services (HHS) declared a twelfth extension of the PHE until April 11, 2023. The end of these emergency periods will result in the end of several different types of relief available for health plan sponsors and participants, including, among others, the end of the “Outbreak Period” rules (see our E-Alerts here and here), and rules impacting cost sharing for COVID-19 testing and vaccines (a summary by KFF is available here).
President Biden’s Statement »

Biden Administration Issues Memorandum on Efforts to Protect Access to Reproductive Healthcare Services
01.22.2023 — The Biden Administration issued a Memorandum addressing efforts to protect access to reproductive healthcare. Among other topics, the Memorandum addresses: FDA guidance protecting patients’ access to mifepristone (a drug used in medication abortions); continued access to telehealth for mifepristone prescriptions; mail-order options; the permanent removal of an in-person dispensing requirement for the prescriptions; and certification of pharmacies to dispense the medication.
Memorandum »
Executive Order 14076 »

Department of Labor Increases Penalty Amounts for Health and Welfare Benefit Plans for 2023
01.13.2023 — The penalty increases, published in the Federal Register, are effective for any civil penalties assessed after January 15, 2023 by the Employee Benefits Security Administration (EBSA). Per-day penalty increases include: failure to file a Form 5500 to $2,586; failure to file an M-1 to $1,881; failure to provide requested documentation to $184, not to exceed $1,846 per request; failure to provide required CHIP notices to $137; and failure to provide a SBC to participants to $1,362.
DOL Regulation in the Federal Register »

IRS Announces Standard Mileage Rate for 2023
12.29.2022 — Beginning January 1, 2023, the standard mileage rate for business travel will be 65.5 cents ($0.655) per mile, and the rate for deductible medical or moving expenses (for active military members) will remain unchanged from the 2022 mid-year rate of 22 cents ($0.22) per mile. The rate for miles driven in service of charitable organizations, which is set by statute, remains unchanged from the 2022 rate of 14 cents ($0.14) per mile.
IRS Notice 2023-03 »
IRS Announcement »

President Biden Signs Law Requiring Recognition of Same-Sex Marriages
12.13.2022 — President Biden signed into law the Respect for Marriage Act, which mandates federal recognition of same-sex marriages. The law also prohibits states from refusing to recognize out-of-state marriages on the basis of sex, race, ethnicity or national origin. In addition, the statute officially repeals the Defense of Marriage Act, which defined marriage as only between a man and a woman.
Respect for Marriage Act »

IRS Increases PCORI Fee Amount
11.14.2022 — The IRS announced an increase in the PCORI fee amount established under the ACA for plan and policy years ending on or after October 1, 2022, and before October 1, 2023. The PCORI fee applies to employers with self-insured health plans, including health reimbursement arrangements. The updated fee is calculated as $3.00 multiplied by the average number of lives covered under the plan. The prior multiplier amount was $2.79. The PCORI fee is due by July 31 each year following the end of the plan or policy year.
IRS Notice 2022-59 »

Department of Health and Human Services Extends COVID-19 Public Health Emergency into 2023
10.13.2022 — The Secretary of the Department of Health and Human Services (HHS) declared a continuation of the Public Health Emergency (PHE) for 90 days until January 11, 2023. This is the eleventh extension of the PHE, which the HHS Secretary initially declared on January 31, 2020 (retroactive to January 27, 2020). The HHS Secretary could terminate the PHE earlier than January 11, 2023 or extend it again. HHS further stated that it will provide 60 days’ advance notice prior to officially terminating the PHE.
HHS Announcement »

Final IRS Regulation Fixes ACA “Family Glitch” Beginning in 2023
10.11.2022 — Final regulations amend the affordability calculation used to determine individuals’ eligibility for obtaining a premium tax credit (PTC) on ACA Exchanges. The regulation, effective on January 1, 2023, fixes the ACA’s so-called “family glitch” by newly extending eligibility for PTCs to many dependents of low-wage workers who were previously ineligible. The new affordability calculation will be based on the cost of covering the employee and their family members, not just the cost of employee-only coverage. The new regulation has no impact on an employer’s affordability calculation for purposes of determining its liability under the ACA’s Employer Shared Responsibility Rules (the “Employer Mandate”).
Final Regulations »

IRS Expands “Change-In-Status” Cafeteria Plan Rules to Allow for Enrollment through Exchanges
10.11.2022 — The IRS issued Notice 2022-41, expanding permitted change-in-status rules for cafeteria plans. Now, on and after January 1, 2023, participants in a cafeteria plan (other than a flexible spending arrangement) will be permitted to revoke or modify an existing election for family coverage during a plan year in order for one or more family members to enroll in a Qualified Health Plan through an ACA Exchange in the individual market.
IRS Notice 2022-41 »

Texas District Court Vacates HHS Guidance on Gender Affirming Care under ACA Section 1557
10.01.2022 — A Texas federal district court has invalidated March 2022 guidance from HHS pertaining to gender identity discrimination under Section 1557 of the ACA. The Guidance stated that categorical refusals to provide treatments to individuals based on their gender identity is prohibited discrimination and that Section 1557 prohibits federally funded entities from limiting individuals’ ability to be provided medically necessary care (including gender affirming care) from a provider “solely on the basis of their sex assigned at birth or gender identity.”
HHS Guidance »
Texas v. EEOC Decision »

Agencies Issue Final Rules and Guidance to Prevent Surprise Medical Bills
08.19.2022 — The Departments of Labor (DOL), Health and Human Services (HHS), and Treasury released a final regulation under the No Surprises Act, a part of the Consolidated Appropriations Act, 2021, designed to prevent surprise medical bills. The new regulation finalizes several procedural rules pertaining to disclosure of the “qualifying payment amount” for covered items or services, the “downcoding” of claims, as well as the Independent Dispute Resolution process. FAQs and a Fact Sheet were also issued.
Final Regulation »
FAQs »

ACA Employer Mandate Penalties Will Increase for 2023
08.16.2022 — The IRS updated its Q&A guidance on the ACA Employer Mandate rules, posting updated annual penalty amounts for 2023. The 2023 Section 4890H(a) “offer of coverage” penalty (commonly referred to as “the large penalty”) will be $2,880, and the Section 4980H(b) “minimum value/affordability” penalty (or “small penalty”) will be $4,320.
IRS Q&A Guidance »
Fact Sheet »

HHS Proposes Rule Intended to Strengthen ACA Section 1557’s Nondiscrimination Provisions
08.04.2022 — The Department of Health and Human Services (HHS) issued a proposed regulation designed to broaden the scope of nondiscrimination provisions and expand application to more insurers after the 2020 version of the rule had limited its scope. In a new provision, HHS proposes a prohibition on discriminating based on sex with respect to an individual’s marital, parental or family status.
Proposed Rule under ACA Section 1557 »

Agencies Issue Guidance Clarifying Protection for Contraception Coverage Under Affordable Care Act (ACA)
07.28.2022 — The Departments of Health and Human Services (HHS), Labor (DOL), and Treasury issued updated guidance regarding the right to coverage of women’s preventive services, including free birth control and contraceptive counseling, under the ACA. The guidance reiterated that emergency contraceptive coverage is included in the list of contraceptive services which must be provided with no cost sharing for all individuals and covered dependents with reproductive capacity.
ACA FAQs Guidance »
HHS Press Release »

EEOC Updates Guidance on Mandatory COVID-19 Testing Programs
07.12.2022 — The Equal Employment Opportunity Commission (EEOC) updated FAQ guidance that states mandatory testing is only permitted if an employer can meet the criteria that the testing is “job-related and consistent with business necessity” based on facts likes vaccination status of employees, level of community transmission and other factors. The new guidance makes clear that the EEOC no longer considers viral screening to be automatically justified.
EEOC Guidance »

HHS and CMS Issue Guidance Regarding Enforcement of EMTALA in States Banning or Restricting Abortion
07.11.2022 — HHS and CMS issued updated guidance following the Dobbs decision overturning Roe v. Wade to clarify that the Emergency Medical Treatment and Active Labor Act (EMTALA) protects healthcare providers’ clinical judgment when treating pregnant patients, regardless of any state restrictions regarding abortion. Further, the Guidance states that if a pregnant patient presents with an emergent medical condition as defined by EMTALA and an abortion is deemed to be the required treatment, the physician must provide one. Additionally, the Guidance clarifies that state law is pre-empted when it prohibits abortion without an exception for the life or health of the mother, or if it defines the exception more narrowly than EMTALA’s “emergency medical condition” definition.
HHS Guidance Letter »
CMS Guidance »

President Biden Signs Executive Order Protecting Access to Reproductive Healthcare Services
07.08.2022 — In response to the U.S. Supreme Court’s Dobbs v. Jackson decision overturning Roe v. Wade, President Biden signed an Executive Order directing HHS to: safeguard access to reproductive health care services, including abortion and contraception; protect the privacy of patients and their access to accurate information; ensure emergency medical care is provided in accordance with the Emergency Medical Treatment and Labor Act; launch outreach and public education efforts; and convene volunteer lawyers to encourage robust legal representation. Additionally, the Order stated that Americans must remain free to travel safely to another state to seek necessary healthcare.
Executive Order »
Fact Sheet »

CMS Issues Guidance on MRF Disclosures for Plan Sponsors without Websites
06.23.2022 — CMS issued “Technical Clarifications” guidance to assist group health plan sponsors without websites that are trying to comply with the requirement in the Transparency in Coverage (TiC) regulation to publicly disclose certain machine-readable file (MRF) disclosures of health plan costs by the July 1, 2022 deadline. The new FAQ guidance allows these plan sponsors to comply with the TiC rule by entering into a written agreement with a service provider (like a third-party administrator) to post the MRFs on the service provider’s public website on behalf of the plan. It should be noted, however, that if the service provider does not abide by the terms of the written agreement and fails to post the MRFs, the plan (not the service provider) would be considered to have violated the TiC rule.
CMS FAQ Guidance »

REMINDER: July 1, 2022 Enforcement Date for Transparency in Coverage Regulation’s “Machine Readable File” Disclosures is Approaching
06.15.2022 — The “Transparency in Coverage” regulation requires that plan sponsors and insurers make the machine readable files (MRFs) disclosures publicly available and accessible to any person free of charge and without conditions, such as the requirement to enter a username, password or other credentials to access the files. All plans with plan years beginning on or after January 1, 2022 must comply with the July 1, 2022 deadline to ensure that links to these files are made publicly available.
Transparency in Coverage regulation »
Transparency in Coverage Final Rule Fact Sheet »

HHS Releases HIPAA Guidance on Audio-Only Telehealth
06.13.2022 — The Office for Civil Rights (OCR) of HHS issued guidance to assist health care providers and health plans with understanding how to utilize audio-only telehealth services in a manner consistent with HIPAA. The guidance clarifies how audio-only telehealth services may use remote communication technologies in a manner which protects the privacy and security of protected health information (PHI). Among other clarifications, the guidance explains that providers and plans must verify an individual’s identity before disclosing PHI. Notably, this new guidance will continue after the expiration of OCR’s existing guidance that provides temporary enforcement relief for providers of telehealth services during the COVID-19 pandemic.
HHS Guidance »

IRS Raises Mileage Rate for Final Six Months of 2022
06.09.2022 — The IRS made a mid-year adjustment to the standard mileage rate for computing deductible travel costs for the second half of 2022. Beginning July 1, 2022, the standard mileage rate for business travel will be 62.5 cents ($0.625) per mile, and the new rate for deductible medical or moving expenses (for active military members) will be 22 cents ($0.22) per mile for the remainder of 2022. The agency ascribes the change to the recent increase in gasoline prices. The IRS has not made a mid-year adjustment since 2011.
IRS Announcement 2022-13 »

Court Rules that Health Plan’s Exclusion of Gender Reassignment Surgery Violates Title VII’s Prohibition Against Sex Discrimination
06.02.2022 — A federal district court in Georgia concluded that an exclusion for gender reassignment surgery under a government employer’s health plan violated Title VII’s prohibition against sex discrimination. Further, the court ruled that gender dysphoria unrelated to a physical impairment was not a disability covered by Title I of the Americans with Disabilities Act (ADA) and held that a related claim based on the Equal Protection Clause of the U.S. Constitution should be decided at trial.
Lange v. Houston County, Georgia, et al. »

Delaware Paid Family and Medical Leave Law Enacted
05.10.2022 — Gov. John Carney signed the Healthy Delaware Families Act, providing up to 12 weeks of leave and benefits to covered employees. Covered employees may take a maximum of 12 weeks per year for parental leave and up to six weeks in any 24-month period for other qualifying reasons. Employers with at least 10 employees in Delaware must contribute to the state’s Family and Medical Leave Insurance Program and provide leave. Contributions will begin on January 1, 2025, and benefits begin on January 1, 2026.
Healthy Delaware Families Act »

DOL, HHS, IRS Issue FAQ Guidance on Machine Readable File Disclosure Requirements and Enforcement Safe Harbor Provisions
04.19.2022 — In advance of the July 1, 2022 enforcement deadline for machine-readable files disclosures, the FAQs describe two safe-harbor provisions: 1) a percentage number instead of a dollar amount may be used by plans and insurers using percentage-of-billed charges reimbursement arrangements where it is not possible to accurately determine specific dollar amounts prior to providing services, and 2) an open text field will be permitted to allow for descriptions of reimbursement arrangements if unsupported by the provided price transparency schema.
New FAQ guidance »
Price Transparency Schema »

IRS Issues Proposed Rule to Fix the ACA’s “Family Glitch”
04.05.2022 — The proposed regulations would change the eligibility standards for an Affordable Care Act (ACA) premium tax credit (PTC) by providing that affordability of employer-sponsored coverage for an employee’s family members would be based on the employee’s cost to cover the employee and those family members, rather than the cost of the “employee-only” or “single” tier coverage. The proposed rule would, if finalized, extend PTCs to millions of people who are currently ineligible for financial help through the Exchanges. Since the proposed rule does not impact eligibility of employees (only family members), it should not implicate the ACA’s Employer Mandate.
Proposed regulation »
Health Affairs »

San Francisco Reinstates Reporting for its Health Care Security Ordinance (HCSO)
04.04.2022 — Following a 2-year hiatus, employers with employees working in San Francisco must submit their annual HCSO reporting on their 2021 compliance by May 2, 2022. The annual reporting requirement had been waived for the 2019 and 2020 reporting years due to the pandemic. The Office of Labor Standards Enforcement (OLSE) has posted the reporting form, related instructions and a webinar. The online form will not be available after May 2. Employers failing to file by that date can face penalties up to $500 per quarter.
New annual reporting form »
Annual reporting instructions »
HCSO reporting webinar »
OLSE HCSO guidance page »

Court Declines to Enforce Plan-Imposed Statute of Limitations Where Not Disclosed in Benefits Denial
3.30.2022 — A federal district court judge in Utah has concluded in two separate rulings that deadlines for filing lawsuits included in an employer’s plan document do not apply when they’re also not included in final denial letters sent to the participants. The court ruled that the failure to restate the statute of limitations in the final denial letters to the participants did not satisfy DOL regulations requiring adequate notice of such limitations on a participant’s right to file suit.
E.F. v. United HealthCare Ins. Co »
Anne A. v. United HealthCare Ins. Co. »

Texas Court Vacates Portions of No Surprises Act (NSA) Rule Related to Arbitration Process
02.23.2022 — On 2/23/22, Judge Jeremy Kernodle of the Eastern District of Texas issued a final judgment setting aside key parts of the NSA that creates a new federal independent dispute resolution (IDR) process in order to protect patients from certain types of surprise out-of-network bills. The lawsuit, led by the Texas Medical Association (TMA), argued that parts of the IDR rule are inconsistent with the NSA and should be invalidated. Judge Kernodle agreed and vacated these provisions on a nationwide basis.
Court Ruling »
Interim Final Rule of the No Surprises Act, Part II »

California Governor Newsom signs COVID-19 Supplemental Paid Sick Leave (CSPSL)
02.19.2022 — SB 114 requires employers with 26 or more employees to provide up to 80 hours of supplemental paid sick leave for certain COVID-19 related reasons. CSPSL is effective from February 19, 2022, and will expire on September 30, 2022 offering leave to both full-time and part-time employees with both fixed and variable weekly schedules. One significant change is that SB 114 permits up to 40 hours to be used in two batches of time in increments of 40 hours, in which qualifying reasons could allow an eligible EE to use some or all of their CSPSL.
SB 114 »
Morgan Lewis »

President Biden Releases Notice of Continuation of the National Emergency Concerning the Coronavirus 2019 (Covid-19) Pandemic
02.18.2022 — On 2/18/22, President Biden again formally extended the COVID-19 National Emergency, which was set to expire on March 1, 2022. This most recent extension means that certain deadlines pertaining but not limited to COBRA election and payments, claim submission and requests for HIPAA special enrollments continue to be paused for one year (or, if earlier, 60 days from the end of the National Emergency). This National Emergency declaration is different from the Public Health Emergency declaration, which is tied to the COVID-19 testing requirements in the FFCRA and the CARES Act.
White House Announcement »
Federal Register »

Departments Issue FAQ Part 52 Enhancing Coverage and Access to COVID-19 Tests
02.04.2022 — The new guidance provides additional flexibility that plans, and issuers can provide the “free” test kits either upfront or through reimbursement. Additionally, plans will also need to provide at least one of each: a direct-to-consumer shipping mechanism and an in-person mechanism. The amount of reimbursement can be limited to $12 per test (or full cost, if lower) and includes shipping and sales tax. The coverage mandate has not changed and still provides tests without a prescription, cost-sharing or preauthorization for at least 8 FDA-approved OTC at-home COVID-19 tests per 30-day period per covered individual.
FAQ Part 52 »
Groom Law Group »

Reminder: San Francisco HCSO “Top-Off” Payment Deadline is February 28
02.01.2022 — The Health Care Security Ordinance (HCSO) requires covered employers to pay an “Expenditure” toward their covered employees’ healthcare costs. In 2022, when an employer is assessing the cost of its 2021 health plan, the employer must determine whether the 2021 average hourly Expenditures meet or exceed the 2021 Expenditure rate. Where the calculations show that the employer’s average Expenditures for a self-insured plan fall short of 2021’s “$3.18 per hour” Expenditure requirement, the employer must make a “top-off” payment by the end of February 2022.
San Francisco’s HCSO Page »
Self-insured Plans’ “Top Off” Payment Instructions »

IRS Releases Publications 502, 503 and 15-B for Use in 2022 on 2021 Tax Returns
01.31.2022 — The IRS recently released a series of publications for use in preparing 2021 tax returns: Publication 15-B explains employer tax treatment of fringe benefits, including rules for tax treatment of accident and health, group term life, HSAs and others; Publication 502 explains usage, calculation, and reporting of deductions for medical and dental expenses; and Publication 503 explains eligibility, calculation and claiming tax credit for child and dependent care expenses on individual tax returns.
Publication 15-B »
Publication 502 »
Publication 503 »

Two New Laws Delay and Modify Washington’s Long Term Care Program
01.27.2022 — Governor Jay Inslee signed two bills into law, making key improvements to delay and modify Washington’s Long Term Care Act (WA Care Fund). Changes include: workers near retirement (born before 1968) can qualify for partial benefits on a pro-rated basis; workers who live out of state and work in Washington, military spouses, workers on non-immigrant visas, and certain veterans with disabilities may opt out of the program; and payroll taxes for workers now start July 1, 2023, with benefits not available until July 1, 2026.
House Bill 1732 »
House Bill 1733 »
WA Cares Fund Employer Information »

OSHA Withdraws its Private Employer Vaccine-or-Test Mandate
01.26.2022 — Following the Supreme Court’s decision to stay the implementation of the OSHA Emergency Temporary Standard (ETS) regulation, OSHA has withdrawn the ETS. The ETS required private employers with 100 or more employees to require vaccination or weekly testing. Under the OSH Act, OSHA intends to use the ETS as a proposal for a permanent standard.
OSHA ETS Withdrawal »
Littler »

Agencies’ MHPAEA Report to Congress Reinforces Plan Sponsors’ Responsibility to Conduct NQTL Comparative Analyses
01.25.2022 — Federal agencies have submitted their 2022 MHPAEA Report to Congress. Effective February 10, 2021, the MHPAEA, as amended by the CAA, requires plans to perform and document a comparative analysis of their benefit plans’ NQTLs to demonstrate parity between mental health/substance use disorder benefits and medical/surgical benefits. The Report highlights noncompliance and enforcement activities, including 86 investigations covering 156 plans and issuers. The comparative analyses reviewed were all initially insufficient. The Report highlights the need for plans and issuers to meet their responsibility to conduct the comparative analyses required.
2022 MHPAEA Report to Congress »

Court Rules that Employer Breached Fiduciary Duty with Misleading SPD Language
01.24.2022 — A federal district court in Tennessee has ruled that an employer breached its fiduciary duty under ERISA to ensure that accurate information is detailed in its summary plan description (SPD). The court’s decision serves as an important reminder to employers to have SPDs reviewed regularly to ensure accuracy. In this case, the employee had enrolled in the employer’s long-term disability (LTD) plan providing 40% of her earnings, and also, its “buy-up” benefit described in the SPD as “additional coverage” of 60% of her earnings. The employee believed she was entitled to 100% of her salary, but when the buy-up plan only provided an additional 20% (for a total of 60% of her salary), she filed suit against her employer and the LTD insurer. The employer was held liable for breaching its ERISA fiduciary duty to communicate accurately in its SPD about the plan’s coverage and required to pay the employee 100% of the LTD benefit.
Johnson vs. Ballad Health »
DOL Guidance on SPDs »

Federal Court Blocks Biden Administration’s Vaccine Mandate for Federal Workers
01.21.2022 — The U.S. District Court for the Southern District of Texas blocked the enforcement of President Biden’s vaccine mandate for federal employees on 1/21/22, enjoining Executive Order 14043, which mandated that all federal employees consent to vaccination against COVID-19 or lose their jobs. The Court enjoined the mandate for being beyond the scope of the President’s authority, citing the recent Supreme Court decision on the OSHA Emergency Temporary Standard (ETS) regulation (requiring vaccination of employees of private sector employers with 100 or more employees).
Southern District of Texas Court Order »
Executive Order 14043 »

CMS Issues Guidance and Deadlines for Texas Healthcare Facilities to Comply with its Vaccine Mandate
01.20.2022 — Following SCOTUS’ decision to permit the CMS vaccine mandate, CMS has issued guidance and timelines for Texas healthcare facilities subject to the mandate. When the Court issued its ruling, Texas healthcare facilities were still under an injunction against the CMS Rule by an order from the U.S. District Court for the Northern District of Texas. Due to the Court’s ruling, the Texas District Court lifted the injunction and dismissed the case.
CMS guidance »
McGuire Woods »

Biden Administration’s Federal Contractor Vaccine Mandate Remains Blocked
01.20.2022 — Executive Order (EO) 14042 requiring employees of federal contractors and subcontractors to be fully vaccinated by 1/18/2022 continues to get blocked by federal courts. On 12/7/2021, the U.S. District Court for the Southern District of Georgia issued a nationwide injunction against the enforcement of the mandate. The 5th, 6th, 8th and 11th Circuit Courts of Appeal have all declined to grant expedited review, and at this time, the earliest that any of these cases could be argued is April 2022, and a final decision could take several more months.
Executive Order 14042 »
Southern District of Georgia Court’s Order »
Littler article »

DC Mayor Reminds Washingtonians of Indoor Establishment Vaccine Mandate for the District beginning January 15
01.14.2022 — DC’s Mayor Muriel Bower reminded Washingtonians that individuals age 12 and over must show proof of one dose of the COVID-19 vaccine beginning 1/15/22, and be fully vaccinated by 2/15/22, to enter certain indoor venues for a city-wide vaccination entry requirement (VaxDc). It includes medical or religious exemptions, with documentation and provision of a negative PCR or antigen test within the last 24 hours.
DC Mayor’s announcement »
VaxDc Guidance and FAQs »

HHS Renews the COVID-19 Public Health Emergency
01.14.2022 — HHS Secretary Xavier Becerra renewed the determination that the COVID-19 pandemic is a “public health emergency (PHE).” The PHE designation, in effect since January 27, 2020, and renewed multiple times, will continue for an additional 90 days. This means that certain telehealth and other health and welfare plan-related rules’ flexibility will remain in effect until at least April 16, 2022.
Public Health Emergency Declaration »

HRSA Updates the Affordable Care Act Preventive Health Care Guidelines to Improve Care for Women and Children
01.11.2022 — Health Resources and Services Administration (HRSA) has updated guidelines to expand women’s preventive benefits effective for plan years beginning in 2023. These benefits now include, but are not limited to, comprehensive lactation services, supplies and maintenance, contraceptive screenings, supplies and counseling, counseling on sexually transmitted infections and more. These guidelines do not address the requirement of coverage or payments for contraceptive services for organizations that have religious beliefs or moral convictions.
HRSA Guidelines »
Religious Accommodation Regulation »

President Biden’s State of the Union Address Focuses on Healthcare, Workplace and Employee Benefits
02.07.2023 — The President’s State of the Union address highlighted multiple healthcare, workplace and employee benefits initiatives. The President outlined steps to strengthen Medicare, Medicaid, and the Affordable Care Act, including controlling prescription drug prices and capping costs for Medicare Part D participants. Mental health was also emphasized, with the President outlining a strategy for creating greater access to care. Further, the speech called on Congress to restore rights to abortion access and codify Roe v. Wade, and to strengthen responses to the opioid crisis and the 2022 “Cancer Moonshot” initiatives. The President also discussed a ban on non-compete agreements, protecting employees’ right to organize, sick days, paid family and medical leave, affordable childcare and restoration of the full child tax credits.
State of the Union Address »

Amazon Pharmacy Announces Prescription Drug Service for Prime Membership Holders
01.24.2023 — Amazon’s launch of RxPass reflects its continued expansion into the healthcare marketplace. Available only as a subscription service for Prime members, consumers can fill as many prescriptions as they require from a list of generic medications for five dollars per month, delivered free of charge. This fee will be in addition to the cost of the monthly Prime membership. Amazon Pharmacy accepts a range of health insurance plans and also allows for the use of health savings accounts and healthcare flexible spending accounts.
Amazon Press Release »
RxPass »

FDA Authorizes Emergency Use of COVID-19 Vaccines for Children Six Months to Five Years
06.17.2022 — The FDA authorized emergency use of the Moderna and Pfizer COVID-19 vaccines for the prevention of COVID-19 in children down to six months of age. Previously, the vaccine was authorized in children ages five years and older, as well as adults. The FDA analysis of the safety, effectiveness and manufacturing data supported the emergency use authorization and outweighed any known and potential risks for the target under-five pediatric population.
FDA News Release »

Leaked “Draft” Supreme Court Decision Overturning Roe v. Wade Raises New Questions for Employers and Plan Sponsors
05.02.2022 — On May 2, 2022, media outlets published a leaked draft U.S. Supreme Court opinion overturning Roe v. Wade. If confirmed, the decision raises significant questions for employers and plan sponsors, including whether employers will be permitted to reimburse medical, surgical and travel costs associated with procuring a legal abortion through the employer’s major medical plan, HRA or other ERISA plan. While ERISA provides broad preemption of state laws relating to employee benefit plans, employers and plan sponsors should ensure that any abortion benefit offered under its ERISA plan is expressly limited to abortion benefits that are in compliance with the state law where they are performed.
Politico »

Airline Travel Mask Mandate Decision Appealed by the Department of Justice (DOJ)
04.20.2022 — Following a ruling by a federal district court in Florida vacating the CDC-mandated mask requirements for airlines, airports, mass transit and taxis, the U.S. Department of Justice (DOJ) filed an appeal on April 20, 2022. While there is no current timeline on a decision, if the 11th Circuit Ct. of Appeals upholds the ruling, the matter may potentially go to the Supreme Court. After the decision, the Transportation Security Administration (TSA) released a statement stating that it will no longer enforce mask use.
Ruling »
DOJ appeal »
TSA Statement »

Provider Challenges to No Surprises Act Continue in Texas, District of Columbia
04.04.2022 — On February 23, 2022, a federal district court in Texas invalidated portions of the interim final rule (IFR) relating to the creation of an Independent Dispute Resolution (IDR) arbitration process under the No Surprises Act, a new law seeking to ban most surprise medical bills. On April 4, 2022, supplemental briefs were filed by medical providers in a Washington D.C. federal district court challenging the methodology used by the IDR process in calculating the qualifying payment amount (QPA), which is generally defined as the median rate the insurer is required to pay for an in-network medical service. Plaintiffs are requesting that the court invalidate portions of the IFR that give the IDR arbitrator (reviewing medical bills at issue) a presumption in favor of selecting the offer closest to the QPA.
Interim Final Rule under the No Surprises Act »
February 23, 2022 Order by Texas District Court »
Plaintiffs’ Supplemental Brief in D.C. District Court »

Biden Administration Warns Health Insurers on Birth Control Coverage and Joint Departments FAQs Released to Address Complaints
01.18.2022 — Health insurers could face increased scrutiny and enforcement actions following Biden Administration guidance to comply with ACA-required birth control. In response to reports of potential violations of the contraceptive coverage requirement, DOL, HHS and Treasury jointly released FAQs, effective 1/10/22, that make clear that all FDA-approved or granted contraceptive products that are determined by an individual’s medical provider to be medically appropriate for such individual must be covered without-cost sharing.
Axios »
Agency FAQs »

Biden Administration Offers Free COVID-19 Tests
01.18.2022 — The Biden Administration increased access to free COVID-19 testing by launching www.COVIDtests.gov. U.S. households can order up to 4 antigen (rapid) tests. The U.S. Postal Service will deliver the tests, expected by late January. These 4 tests will not limit the 8 monthly tests that insured individuals will be able to get through their group health plan or insurer at no cost.
White House Fact Sheet »

Supreme Court asked to evaluate ERISA pre-emption for City of Seattle Ordinance for Hotel Worker’s Insurance
01.14.2022 — SCOTUS has been asked to review this case pertaining to the Seattle Ordinance which requires large hotels and related businesses to give workers either health insurance coverage or additional compensation and whether it is preempted by ERISA. This case presents the question of whether ERISA’s preemption provision permits state and local governments to place insurance mandates on private employers. The question whether ERISA preempts state law is an issue of frequent litigation, finding its way to the Supreme Court almost two dozen times. As seen with the San Francisco Health Care Ordinance, it was allowed to proceed.
EBSA Memo »
Seyfarth Shaw »
Petition »

Biden Calls on Employers to Implement Vaccine Mandates Despite SCOTUS Block of OSHA COVID-19 ETS
01.13.2022 — After SCOTUS’s block of OSHA’s Emergency Temporary Standard (ETS) that would have required employers with 100 or more employees to adopt mandatory COVID-19 vaccination for their employees or weekly testing, President Biden urged business leaders to immediately join those companies, including 1/3 of Fortune 100 companies, who have instituted vaccine requirements to protect employees, customers and communities.
White House Statement »
The Hill »

FDA Approves Pfizer Vaccine Boosters for 12- to 15-Year-Old Children
01.03.2022 — The FDA has authorized a single dose booster of the Pfizer-BioNTech COVID-19 vaccine for 12- to 15-year-old children in a revised Emergency Use Authorization (EUA). The EUA also authorizes a booster for certain immunocompromised 5- to 11-year-old children.
FDA news release »

CDC Cuts COVID-19 Isolation Period Recommendation in Half
12.27.2021 — The CDC has shortened its recommended isolation time for people who test positive for COVID-19 from 10 days to five days if they're asymptomatic. This will have an immediate benefit to employers and HR managers across the country who have been dealing with the negative impact of increasing numbers of employees in quarantine as Omicron cases surge.
CDC announcement »

Omicron Surge Challenges Definition of “Fully Vaccinated”
12.21.2021 — The U.S. may be getting closer to redefining what “fully vaccinated” means. Officials are considering requiring boosters as part of the full vaccination regimen. Other countries have already made this change. Changing definitions could cause additional challenges for employers and businesses.
Politico »
White House Press Release »

CDC Recommends COVID-19 Vaccine Boosters for All Adults
11.19.2021 — The FDA has authorized, and the CDC has recommended, COVID-19 vaccine boosters for all adults. As a result, all individuals age eighteen or older are now eligible for a single dose of the Moderna or Pfizer-BioNTech booster if it has been at least six months since they completed their second vaccination. The booster provides continued protection against the virus and serious consequences such as hospitalization or death.
CNN Health »

6th Circuit Court of Appeals to Decide on Challenges to the Vaccine Mandate for Large Employers
11.16.2021 — Challenges to the recent OSHA ETS regulation will be consolidated and heard by the conservative-leaning 6th Circuit Court of Appeals. While the 6th Circuit tends to rule in favor of conservative positions, it’s possible that its decision could modify or lift the 5th Circuit’s stay of the ETS (see our eAlert).
CNN »

Florida Governor Convening Special Session to Pass Bills to Block COVID-19 Vaccine Mandates
11.14.2021 — Florida Governor Ron DeSantis has called a special legislative session to review four bills aimed at blocking employer COVID-19 vaccine mandates. The bills increase fines for local businesses, governments and other companies requiring workers to be vaccinated and schools requiring mask wearing.
The Hill »

FDA Authorizes “Mix and Match” Booster Vaccinations
10.20.2021 — The FDA has authorized boosters that differ from the vaccine originally used to immunize a person against COVID-19 (often referred to as the “mix and match” approach). So, for example, a person who received a Johnson & Johnson vaccine could receive one from Moderna or Pfizer-BioNTech as a booster.
NPR »

Florida Dept. of Health Fines County $3.5M for Implementing Vaccine Mandate
10.12.2021 — The Florida Department of Health fined Leon County $3.5 million for requiring its employees to get vaccinated against the coronavirus, saying it violated the state's ban on "vaccine passports."
Axios »

Twenty-four States Threaten to Challenge OSHA Vaccine Mandate
09.16.2021 — Recently, 24 state attorneys general submitted a letter strongly opposing President Joe Biden’s proposed COVID-19 vaccine mandate among private sector employers. The President’s proposed mandate would require that all such employers with 100 or more employees require their employees to be vaccinated or submit to weekly testing. These states have threatened legal action should the mandate’s efforts move forward.
Attorneys General Letter »

DeSantis threatens $5K fine against Florida cities with vaccine mandates
09.13.2021 — Florida Gov. Ron DeSantis threatens to fine cities and counties thousands of dollars if they impose vaccine requirements on their employees. It’s not clear how quickly the state will put in new rules that would call for these fines. At least three Florida counties and cities have required their workers to be vaccinated or tested.
Politico »

Biden Lays Out Plan To Mandate Vaccines Or Testing For Millions Of Workers
09.09.2021 — President Biden announced new federal rules requiring all businesses with 100 or more employees to ensure that every worker is either fully vaccinated for COVID-19 or submits to weekly testing for the coronavirus. Biden said the new emergency rule for private sector employers, which will be issued by the Department of Labor's Occupational Safety and Health Administration, would apply to 80 million workers.
WhiteHouse.gov »
NPR »

Delta Airlines Imposes Premium Surcharge on Unvaccinated Employees
08.25.2021 — On August 25, Delta Airlines announced that as of November 1, unvaccinated staff will pay up to $200 a month more for their company health insurance, depending on the coverage. It will also limit the number of sick days unvaccinated employees are allowed to take if they contract Covid-19.
CNN »

FDA Grants Full Approval of Pfizer COVID-19 Vaccine
08.23.2021 — On August 23, the FDA granted the first full approval of a COVID-19 vaccine. This approval will likely mean that a significantly greater number of U.S. employers will adopt mandatory vaccination policies. The vaccine remains available under emergency use authorization (EUA), including for individuals 12-15 years of age and for a third dose in certain immunocompromised individuals.
FDA News Release »

Most Private Insurers No Longer Waiving Cost-Sharing for Covid-19 Treatment
08.19.2021 — New research by the Kaiser Family Foundation (KFF) shows that most private insurers are no longer waiving cost-sharing for COVID-19 treatment. There is no federal mandate requiring insurers to waive COVID-19 out-of-pocket treatment costs. KFF finds that 72% of the two largest insurers in each state and DC (102 health plans) are no longer waiving these costs, and another 10% of plans are phasing out waivers by the end of October.
KFF Research Brief »

Biden Admin Recommends Booster Shots Beginning in September
08.18.2021 — The Biden Administration has announced that it plans to begin offering Covid-19 booster shots to all American adults starting Sept. 20, 2021, amid growing evidence that a third dose of the vaccine will be needed to maintain immunity against the virus.
Politico »

DOL Settles Lawsuit Against United Healthcare under MHPAEA
08.11.2021 — Two settlement agreements filed on August 11 provide that United Healthcare Insurance Co., United Behavioral Health, and Oxford Health Insurance Inc., will together pay more than $15.6 million to settle allegations they violated the Mental Health Parity and Addiction Equity Act (MHPAE). The settlement marks the clearest signal yet of the Biden Administration’s increased enforcement of the MHPAE.
Bloomberg »

United Airlines To Require US Employees Get Vaccinated Against COVID-19
08.06.2021 — United Airlines has announced that employees will be required to get vaccinated against Covid-19 by October 25 – the first major U.S. airline to implement such a mandate. A United executive said it was not considering a similar rule for passengers, and that any such requirement would be a decision for the government.
AP News »

ACA Survives 3rd Major Supreme Court Challenge
06.17.2021 — In California v. Texas, the U.S. Supreme Court, by a vote of 7-2, denied a challenge to the Affordable Care Act (ACA), concluding that the plaintiffs did not have standing to challenge the constitutionality of the now penalty-less individual mandate. This decision is the Court’s third rejection of a broad, global challenge to the ACA in less than a decade.
SCOTUS decision »
K&L Gates article »

White House Releases Fact Sheet on The American Families Plan (AFP)
04.28.2021 — Among other proposed provisions, the AFP would create a national comprehensive paid family and medical leave program, funded through tax increases, and paying workers up to $4,000 a month. Under that cap, it would replace a minimum of two-thirds of average weekly wages, rising to 80 percent for the lowest-wage workers. The program would be phased in over a 10-year period.
White House Fact Sheet »
SHRM »

Biden Administration Encourages Employers to Provide Paid Leave and Financial Incentives for Employees’ COVID-19 Vaccinations
04.21.2021 — Tax credits are available for employers with fewer than 500 employees for providing workers with paid leave for COVID-19 vaccinations as part of the American Rescue Plan Act. The administration is also calling for employers to incentivize employees to get vaccinated, which they say could convince an additional 25% of Americans.
Biden Administration Fact Sheet »

Biden Administration Asks Supreme Court to Uphold the ACA
02.10.2021 — The Biden administration has withdrawn the federal government's support for a challenge to the Affordable Care Act’s (ACA) constitutionality before the U.S. Supreme Court, telling the Supreme Court that the law should remain on the books. While the move shows the policy shift between the two presidential administrations, it is not expected to have a major impact on the outcome of the case.
Solicitor General’s Request »
Politico »

Congress Passes Resolution to Clear the Way for $1.9 Trillion Stimulus Legislation
02.05.2021 — The House and Senate have approved a budget resolution that paves the way to pass President Joe Biden’s $1.9 trillion stimulus bill in the coming weeks with only Democratic votes.
Bloomberg »

Biden Selects Marty Walsh to Head U.S. Dept. of Labor
01.07.2021 — President-elect Joe Biden has named Boston Mayor Marty Walsh to be Secretary of the U.S. Department of Labor (DOL). If confirmed, Walsh will work with the Biden administration on significant issues, including an emergency standard to protect workers from on-the-job COVID-19 infection, and coordinating states’ payment of unemployment insurance benefits to millions of unemployed workers.
Bloomberg »

President-elect Biden will Halt Agency Rules Described as “Midnight Regulations”
12.30.2020 — President-elect Joe Biden will issue a memo on Inauguration Day seeking to halt or delay so-called “midnight regulations” issued by the Trump administration that have not taken effect by Inauguration Day.
The Hill »

Lawmakers strike deal to end 'surprise' medical bills
12.11.2020 — The “No Surprises Act” calls for parties to negotiate an agreed-upon rate or bring their dispute to a mediator. However, providers would still be allowed to bill patients to make up the difference if they inform patients the services won’t be covered and they provide an estimate of charges 72 hours before care.
No Surprises Act »
Politico »

FDA Panel Votes to Approve Pfizer COVID-19 Vaccine for Emergency Use
12.10.2020 — A U.S. Food and Drug Administration advisory committee voted Thursday to approve an emergency use authorization request from Pfizer and BioNTech for their COVID-19 vaccine, clearing the way for some groups to start getting vaccinated as early as next week. Under the CARES Act, the vaccine will be covered under all employer-sponsored group health plans without cost sharing.
U.S. Food and Drug Administration»

FDA Authorizes Monoclonal Antibody for Treatment of COVID-19
11.9.2020 — The U.S. Food and Drug Administration issued an emergency use authorization (EUA) for the investigational monoclonal antibody therapy bamlanivimab for the treatment of mild-to-moderate COVID-19 in adult and pediatric patients. Under the CARES Act, treatments with EUA are covered under all group health plans without cost sharing.
U.S. Food and Drug Administration»

CDC Says Airborne Transmission Plays a Role in Coronavirus Spread
10.5.2020 — The Centers for Disease Control and Prevention acknowledged that people can sometimes become infected with the novel coronavirus through airborne transmission, especially in enclosed spaces with inadequate ventilation.
The Washington Post »

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