Fiduciary Outsourcing LLC (Remote)
“BenefitsLink continues to be the most valuable resource we have at the firm.”
-- An attorney subscriber
"[T]he 2024 Final Rule expands the universe of entities that would be considered investment advice fiduciaries under ERISA and corresponding provisions of the Code. In order to receive compensation that varies based upon their recommendations, investment advice fiduciaries must find exemptive relief, which PTE 2020-02 supplies.... DOL has made many other exemptions unavailable to investment advice fiduciaries, with the result that PTE 2020-02 largely stands as the only available option for exemptive relief in many cases."
Tags: Fiduciary Duties • Retirement Plan Investment Costs • Retirement Plan Investments
"Yes, provided that your plan document has been drafted as expansively as IRS rules allow regarding midyear election changes due to changes in cost or coverage. The rules apply broadly to dependent care assistance programs (DCAPs), permitting midyear election changes in a variety of circumstances involving changes in care providers or in the cost of care."
Tags: Cafeteria Plans • Dependent Care
"The final amendments completely abandon the restrictive approach taken under DOL's amendment proposal that would have limited covered compensation to 'Insurance Sales Commissions' ... DOL's preamble commentary indicates that it has retreated from statements made in the proposal and in connection with its 2016 rulemaking effort that compensation covered by PTE 84-24 is limited to so-called 'simple commissions.' "
"[P]rograms that rely on PTE 77-4 when providing advice would be required to consider a different compliance framework. Options might include eliminating the fee conflict through an offsetting approach or relying on PTE 2020-02 . Moreover, those relying on PTE 77-4 within discretionary management structure may be forced to rely on PTE 2020-02 when recommending that retirement investors participate in the program and then rely on PTE 77-4 when managing the assets."
Tags: Fiduciary Duties • Retirement Plan Investment Costs • Retirement Plan Investments
"Recent revelations about a data analytics firm's role in determining medical payments have heightened concerns about possible price fixing in health care and led to a call for a federal investigation.... Senator Amy Klobuchar asked federal regulators to examine whether algorithms used by the firm, MultiPlan, have helped major health insurers conspire to cut payments to doctors and leave patients with large bills."
Tags: Health Plan Costs • Health Plan Policy
"This study gathered sponsor perspectives on retirement confidence, managing investment lineups in uncertain markets, retirement income and their views on an array of legislative issues and litigation concerns.... Employers and employees are concerned about retirement readiness. Investment lineups are being re-evaluated, including retirement income solutions. 2024 trifecta of employer concerns: litigation, legislation, and a litany of administration."
Tags: Fiduciary Duties • Retirement Plan Design • Retirement Plan Investments
"As the Boomer retirement wave rolls through the financial services environment, asset managers like BlackRock have trouble controlling their own destinies. They distribute target date funds through retirement plans, but they are DCIO companies. They don't administer plans or offer rollover IRAs to retirees from their plans (as Vanguard, Fidelity and TIAA do). They stand to lose assets when participants retire."
"The FAQs specifically point to OCR's ransomware guidance, which has information on actions for regulated entities to take to determine if a ransomware incident is a breach (which is a fact-specific determination). OCR highlights that if covered entities are aware of a potential breach by a business associate, there is an obligation to proactively investigate whether a breach occurred, and report the breach to HHS, impacted individuals, and in certain cases, the media."
Tags: Cybersecurity • HIPAA
"While most PHI related to reproductive health care will remain in the hands of third-party administrators and insurance carriers, the new rules will require action on the part of employers with self-funded group health plans (or insured plans with access to PHI) by Dec. 22, 2024.... [E]mployers will need to: [1] Provide training; [2] Revise policies and procedures; [3] Update the Notice of Privacy Practices (by February 16, 2026); [4] Develop an attestation form."
Tags: HIPAA
"The DOL refrained from providing special exceptions or exemptions to platform providers, pooled employer plans (and more specifically, pooled plan providers), and call center employees and instead reiterated that communications would be evaluated based on the general standards of the Final Rule . However, the DOL noted that platform providers that merely identify investment alternatives using objective third-party criteria without additional screening or recommendation would not be providing covered recommendations."
"[S]electing the strategy with the highest historical returns or the lowest fees as your plan's QDIA won't necessarily prove adherence to the fiduciary's duty of loyalty and prudence.... Suggested data to review include age cohorts, salary levels, account balances, deferral rates and matching programs, employee turnover rate and average tenure, retirement income objectives, availability of other savings (e.g., DB plan) and risk tolerance[.]"
Tags: Fiduciary Duties • Retirement Plan Design • Retirement Plan Investments
"[T]raining HR and benefits staff to understand the innerworkings of a retirement plan is a vital and ongoing task for employers, especially for those who manage smaller teams made up of mainly generalists who do not have prior retirement-plan experience."
Tags: Health Plan Administration • Retirement Plan Administration
"[T]he legal challenges assert that the Noncompete Rule upends centuries of established contract law as noncompetes have been enforceable contracts since before the Nation's founding. Indeed, enforcement of non-competes has been a feature of English common law since the early 18th century ... This raises the question of whether the purported benefit of the Noncompete Rule to workers and the economy as a whole touted by the Agency outweighs the costs to employers who have long relied on the expectation of enforceable noncompetes to protect their specialized training, investment, and confidential information ... Ultimately, [the authors] believe ... that the FTC's Noncompete Rule is unlikely to be upheld in its current form."
Tags: Executive comp • Severance Pay
"While the new rule applies primarily to retirement savings plans covered by [ERISA], the news is not all bad for savers in K-12 403(b) plans ... [The rule will] apply to rollovers out of K-12 403(b) plans ... Participants should ask every 'trusted' advisor in the lounge if they will adhere to the new Retirement Security Rule. And if not, why not?"
"The low cost advantage of CIT TDFs is overstated when the costs of underlying funds are excluded. CIT expense reports are not the same as mutual fund expense reports. As it stands now, fiduciaries need to look at the CIT's Participation Agreement -- or specifically ask -- to discover underlying fund fees."
"[E]xposing PBMs' opaque business practices and imposing regulatory constraints will remain a top priority for regulators.... Even before a statutory or regulatory elimination of spread pricing, health plans should begin to consider now how this change could impact current and future PBM contracts ... [It] may be worthwhile to consider now the various channels for PBM profit available under your PBM contract, and whether you can begin to limit/narrow (or consider limiting/narrowing) those avenues for PBM remuneration that exceed the scope of 'bona fide service fees.' "
38 pages. "89% of survey respondents said their EPC has a provider network that includes options that are convenient for them.... One in five respondents reported using a cost comparison tool. Among those who did, almost 60% say it changed their behavior and some chose less expensive treatment options.... Most people were aware that their employer-provided plan covers preventative services at no out-of-pocket cost, but awareness varied by age, health status, and urbanicity."
Tags: Health Plan Costs • Health Plan Design
"A change from the proposed rule is that there is an exception for existing Noncompetes with 'senior executives'. A senior executive is an individual earning more than $151,164 in the preceding year who is in a 'policy-making position'.... This narrow definition excludes many highly paid employees such as sales and investment professionals or executives without policy-making authority."
Tags: Executive comp • Severance Pay
"Existing noncompetes with 'senior executives' who are in 'policy-making positions' with respect to the entire business enterprise and earn more than $151,164 annually remain enforceable.... The Final Rule does not prohibit enforcement of noncompete clauses that are entered into pursuant to a bona fide sale of a business entity.... The Final Rule's definition of senior executive is significantly narrower than similar concepts in other legal regimes that govern executive compensation."
Tags: Executive comp
"The 4th Circuit Court of Appeals in Richmond, Va., issued its decision about two cases. One was brought by North Carolina state employees and their dependents who are transgender and were unable to get coverage for gender-affirming care. The other lawsuit came from West Virginians who are transgender and on Medicaid. They could get coverage for some treatments -- like hormones -- but not for surgery." [ Anderson v. Crouch , No. 22-1721 (4th Cir. Apr. 29, 2024)]
"Starting on May 1, 2024, certified IDR entities will notify parties through an email from the Federal IDR portal that a dispute is eligible for resubmission due to improper batching or bundling ... If the recipient initiated the dispute, the resubmission email notification will contain a unique link to a new form called the Notice of IDR Initiation ... Initiating parties have four business days from the date of the resubmission email notification to resubmit a dispute."
"[T]he Departments and OPM will exercise their enforcement discretion under the relevant No Surprises Act provisions for any plan or issuer, or party to a payment dispute in the Federal IDR process, that uses a QPA calculated in accordance with the methodology under the July 2021 interim final rules and guidance in effect immediately before the decision in TMA III, for items and services furnished before November 1, 2024. Similarly, for items and services furnished before November 1, 2024, HHS will exercise enforcement discretion under the relevant No Surprises Act provisions for a provider, facility, or provider of air ambulance services that bills, or holds liable, a participant, beneficiary, or enrollee for a cost-sharing amount based on a QPA calculated in accordance with the methodology under the July 2021 interim final rules and guidance in effect immediately before the decision in TMA III."
"DOL hopes plan administrators will voluntarily provide extensive historical information -- much of which goes beyond what the act requires -- to help the agency meet its Dec. 29 deadline for setting up the database. If the ICR is approved substantively intact, sponsors will need to carefully consider whether to provide the requested data, including discussing with legal counsel any potential risks under applicable privacy laws. Comments are due June 17."
"If your non-governmental 457(b) plan has accepted deferrals exceeding the IRS-prescribed annual dollar limit (or the limit on catch-up deferrals, if applicable), the good news is that the regulations outline an approved correction method. The method is similar to the method that applies to 401(k) plans ... The bad news is that if an excess deferral under a non-governmental 457(b) plan is not distributed by April 15 of the following year, with earnings, there is no further opportunity for correction"
"Unique substantive requirements, regular amendments to the Ordinance, Rules and administrative guidance, and proactive enforcement have been hallmarks of the mandate since it went into effect in April 2014."
Tags: FMLA and Other Leave • Local Regulation