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Review of Plans Affected by ERISA Final Regulations for Disability Benefits Claims Procedures

Last December, we reported on the DOL’s release of final regulations revising ERISA’s claims procedures for disability benefits. A more in-depth review of the types of benefit plans affected by these final regulations is available on our companion blog, HB Health and Welfare.

En Banc Ninth Circuit Applies Ongoing Duty to Monitor Investments Standard in Tibble

The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, recently held that plaintiffs’ breach of fiduciary duty claims were not barred by ERISA’s six year limitations period, even when the retirement plan investments in question were selected by the plan’s fiduciary more than six years prior to plaintiffs’ suit. The Ninth Circuit applied the U.S. Supreme Court’s recent decision in this case, which confirmed that fiduciaries have an ongoing fiduciary duty to monitor investments in retirement plans and to remove imprudent ones. (For additional information on the Supreme Court’s decision, please see our prior post.) The Ninth Circuit distinguished between a fiduciary’s duty to prudently select investment alternatives from the fiduciary’s duty to prudently monitor them. Consequently, a fiduciary’s ongoing duty to monitor plan investments could result in a series of breaches as an investment alternative is retained over time. The Ninth Circuit remanded the case back… Continue Reading

Federal District Court Orders Owner to Disgorge His Cars

A recent federal district court case demonstrates the risk to an ERISA fiduciary’s personal assets when he commits a fiduciary breach. The court previously held that the former owner of a privately-held company engaged in a prohibited transaction and breached his fiduciary duties when he sold shares of company stock to his company’s leveraged ESOP at prices in excess of its fair market value. The district court required the owner to provide assets, including several cars, as security in conjunction with his motion to stay enforcement of the judgment pending appeal, stipulating that if the judgment were upheld, the security would be transferred to the plaintiffs. When the U.S. Court of Appeals for the Fifth Circuit upheld the judgment, the owner refused to turn over the assets. The district court is now ordering the owner to turn over the assets despite any hardship that it may cause the owner. Perez… Continue Reading

Safeguards to Defend Against Conflict of Interest Allegations in the Administration of ERISA Welfare Benefit Claims

In cross-motions for summary judgment in Geiger v. Aetna Life Insurance Company, the U.S. Court of Appeals for the Seventh Circuit considered whether Aetna, the designated claims fiduciary and insurer of disability benefits provided under an employer-sponsored ERISA welfare benefit plan, abused its discretion when it terminated the plaintiff’s disability benefits.  The plaintiff was a former employee of the employer-plan sponsor.  The terms of the plan specifically granted discretionary authority to Aetna with respect to determining benefits and construing the terms of the plan. However, the plaintiff alleged that Aetna had operated under a conflict of interest, as the party that both determined eligibility for and paid plan benefits, and thus abused its discretion in denying her claim.  In deciding that Aetna did not abuse its discretion, the Court considered the following four safeguards that Aetna had undertaken to minimize any conflict of interest: (i) Aetna obtained numerous independent physician… Continue Reading

ERISA Final Rules for Disability Benefits Claims Procedures

The U.S. Department of Labor issued final regulations revising the ERISA claims procedures that apply to employee benefit plans offering disability benefits. Generally, these final regulations extend certain procedural rules applicable to claims submitted under group health plans to disability benefit claims submitted under ERISA plans that provide disability benefits. The final regulations apply to claims for disability benefits filed on or after January 1, 2018. View the final regulations here.

DOL Issues Fiduciary Rule FAQs

The DOL has issued the first of several FAQs addressing the DOL’s new fiduciary rule, which was finalized in April 2016 (the “Rule”). The Rule, which will generally become effective on April 10, 2017, prohibits parties that provide fiduciary investment advice to plan sponsors, plan participants, and IRA owners from receiving payments that create conflicts of interest, unless the parties comply with a prohibited transaction exemption (“PTE”). The FAQs generally address how the Rule will be implemented and clarify a number of issues related to the new “best interest contract” and “principal transactions” PTEs. View the FAQs. View the DOL’s announcement of the FAQs.

DOL Settles with Group Health Plan Over Findings of Affordable Care Act and ERISA Violations

The DOL issued a press release announcing its recent settlement with fiduciaries of a group health plan (the “Plan”) sponsored by Sierra Pacific Industries, a major western lumber producer. The press release followed the conclusion of a DOL investigation that determined the Plan did not comply with the Affordable Care Act (“ACA”) and ERISA in certain respects. In particular, the DOL found problems with the Plan’s claims processing, with the clarity of the Plan’s documents, and with the application of the Plan’s procedures for deciding claims. In addition, the DOL found the Plan had been administered erroneously under ACA “grandfathered status” since January 1, 2013. As a result of this investigation, the Plan’s fiduciaries agreed to (i) revise the Plan’s documents and internal procedures; (ii) re-adjudicate past claims for preventive services, out-of-network emergency services, claims affected by an annual limit, and pay claims in compliance with the ACA and ERISA;… Continue Reading

PBGC Missing Participant Program to Include 401(k) Plans and Certain Other Plans That Terminate after 2017

The PBGC issued a proposed rule that would expand its existing missing participants program to cover terminated defined contribution plans, such as 401(k) and profit-sharing plans, as well as certain other plans not currently covered under the program, that voluntarily elect to participate. Under the program, for a low one-time fee, and following a diligent search, the terminating plan may transfer the account balances or accrued benefits of all missing participants to the PBGC. The PBGC will then maintain a centralized, online searchable directory of the missing participants and periodically search for the missing participants. In the proposed rule, the PBGC also modifies the criteria for a participant to be considered ”missing” and provides specific diligent search rules for plans to attempt to locate missing participants. Read the proposed rule.

Ninth Circuit Holds that “Church Plan” Must Be Established By a Church or Convention or Association of Churches

The U.S Court of Appeals for the Ninth Circuit affirmed a district court decision that a church plan must be established by a church or by a convention or association of churches in order to be exempt from ERISA as a “church plan.” Under the court’s interpretation of the church plan exemption, it is not enough that the plan is maintained by a church-controlled or church-affiliated organization whose principal purpose or function is to provide benefits to church employees. The case was remanded to the district court for further proceedings. The opinion in Rollins v. Dignity Health, No. 15-15351 (9th Cir. July 26, 2016) is available here.

DOL Increases Civil Penalties for Various ERISA Violations

On July 1, 2016, the DOL issued an interim final rule that adjusts the amounts of civil penalties assessed or enforced in its regulations, including for violations of ERISA. The penalties that were increased include the following, among many others: (1) the penalty for a failure to properly file a pension or welfare plan’s Form 5500 increased from up to $1,100 per day to up to $2,063 per day; (2) the penalty for a failure to notify participants of certain benefit restrictions under Code Section 436 or to furnish automatic contribution arrangement notices increased from up to $1,000 per day to up to $1,632 per day; (3) the penalty for a failure to provide notices of blackout periods, or notice of the right to divest employer securities, increased from up to $100 per day to up to $131 per day; and (4) the penalty for a failure to provide employees… Continue Reading

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