Cross-plan offsetting is a practice that is used by third-party administrators (“TPAs”) of employer-sponsored group health plans as a means of recouping a benefit payment that was purportedly overpaid to an out-of-network health care provider under one plan by reducing the benefit payment owed to the same provider under another entirely separate plan. This practice has raised fiduciary compliance issues under ERISA and has frequently been the subject of litigation. Recently, in Lutz Surgical Partners, PLLC, et al. v. Aetna, Inc., et al.¸ a federal district court in New Jersey held that Aetna’s use of cross-plan offsetting violated ERISA. Under ERISA, a plan fiduciary may not, “in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries.” In addition, ERISA… Continue Reading
Among the new requirements that are, or soon will be, imposed on employer-sponsored group health plans subject to ERISA (?Ç£GHPs?Ç¥) by the Consolidated Appropriations Act of 2021 (the ?Ç£CAA?Ç¥) are compensation disclosure requirements which apply to GHPs and certain of their third-party service providers. Background ERISA contains prohibitions on certain transactions between an employee benefit plan, including a GHP and a party-in-interest, such as a third-party service provider.?á Section 408(b)(2) of ERISA provides an exemption from the prohibited transaction rules for reasonable contracts entered into by a plan and a service provider for necessary plan-related services (?Ç£Contract?Ç¥), provided that no more than reasonable compensation is paid for such services (the ?Ç£Prohibited Transaction Exemption?Ç¥). The relevant fiduciary of the plan under ERISA (the ?Ç£Fiduciary?Ç¥) is responsible for determining whether compensation to be paid under the Contract is reasonable in order to comply with the Prohibited Transaction Exemption. Disclosure Requirement under the… Continue Reading
The DOL?ÇÖs Employee Benefits Security Administration (the ?Ç£EBSA?Ç¥) recently released additional guidance on PTE 2020-02, Improving Investment Advice for Workers and Retirees, a new prohibited transaction exemption under ERISA that was adopted on December 18, 2020 (the ?Ç£Exemption?Ç¥) (see our prior blog posts about the Exemption here and here). The guidance consists of two documents: (i) a publication titled ?Ç£Choosing the Right Person to Give You Investment Advice: Information for Investors in Retirement Plans and Individual Retirement Accounts?Ç¥ (the ?Ç£Investor Guidance?Ç¥), and (ii) a publication titled ?Ç£New Fiduciary Advice Exemption: PTE 2020-02 Improving Investment Advice for Workers & Retirees Frequently Asked Questions?Ç¥ (the ?Ç£Advisor Guidance?Ç¥). The Investor Guidance provides information on the Exemption for investors and includes a list of questions for investors to ask their investment advice providers, as well as a list of investor-focused FAQs. The Advisor Guidance is compliance focused and includes a list of FAQs targeted… Continue Reading
Employee Benefits Regulations Potentially Impacted by the Biden Administration?ÇÖs Regulatory Freeze
On January 20, 2021, the Biden Administration issued a memorandum (the ?Ç£Memo?Ç¥) announcing a regulatory freeze on regulations that have not taken effect as of the date of the Memo. Specifically, the Memo recommends postponing the effective date of any regulation that has been issued, but has not taken effect, for 60 days from the date of the Memo. The Memo further directs that regulations not yet published in the Federal Register be immediately withdrawn for review. Listed below are some of the proposed and final regulations related to employee benefits that may be subject to withdrawal or postponement under the Memo: Prohibited Transaction Exemption 2020-02 ?Çô Improving Investment Advice for Workers & Retirees. Final Rule. Application of the Employer Shared Responsibility Provisions and Certain Nondiscrimination Rules to Health Reimbursement Arrangements and Other Account-Based Group Health Plans Integrated with Individual Health Insurance Coverage or Medicare. Final Rule. Pension Benefit Statements-Lifetime… Continue Reading
The DOL recently finalized Prohibited Transaction Exemption 2020-02 ?Çô Improving Investment Advice for Workers & Retirees (?Ç£PTE 2020-02?Ç¥) for investment advice fiduciaries.?á PTE 2020-02 finalizes the proposed exemption which we previously reported on here.?á This guidance for investment advice fiduciaries completes the regulatory process that began in 2016 with the new fiduciary regulations and exemptions issued under the Obama administration, which were vacated in 2018, and the reinstatement of prior regulations and the issuance of new exemption guidance earlier this year.?á While PTE 2020-02 makes some changes to the proposed exemption, it largely retains the proposed exemption?ÇÖs protective framework, including the ?Ç£Impartial Conduct Standards?Ç¥ (under which investment advice fiduciaries must provide advice that is in the retirement investor?ÇÖs ?Ç£best interest?Ç¥), required disclosures, implementation of policies and procedures to comply with the standards and mitigate conflicts of interest, and retrospective compliance review.?á The final exemption also includes a self-correction mechanism for… Continue Reading
This class action lawsuit, styled Scott, et al. v. UnitedHealth Group, Inc., et al., was filed in the U.S. District Court for the District of Minnesota on July 14, 2020. This lawsuit follows the decision of the U.S. Court of Appeals for the Eighth Circuit in Peterson v. UnitedHealth Group Inc. that was issued last year. In Scott, the plaintiffs, who were participants in the plans at issue in Peterson, filed, on behalf of a class of plaintiffs (the ?Ç£Class?Ç¥), a class action against UnitedHealth Group, Inc. and its wholly-owned subsidiaries (collectively, ?Ç£UHC?Ç¥), in their capacities as an insurer and/or third-party claims administrator of employer-sponsored group health plans. The lawsuit alleges the breach of UHC?ÇÖs fiduciary duties under ERISA as related to UHC?ÇÖs practice of ?Ç£cross-plan offsetting.?Ç¥ The Class consists of participants and beneficiaries in all group health plans that are administered by UHC and contain ?Ç£cross-plan offsetting?Ç¥ (collectively, the… Continue Reading
The New DOL Fiduciary Rule ?Çô A Return to the Old with a New Proposed Prohibited Transaction Exemption
On June 29, 2020, the DOL issued its much anticipated new ?Ç£fiduciary rule?Ç¥ under ERISA. The new rule is meant to replace the DOL?ÇÖs previous fiduciary rule (and related exemptions) which went into effect in 2016 but was vacated by the U.S. Court of Appeals for the Fifth Circuit in 2018. The new fiduciary rule is composed of two parts: (i) a final regulation which reaffirms and reinstates the five-part test for determining whether a person renders ?Ç£investment advice?Ç¥ for purposes of ERISA (the ?Ç£Reinstated Rule?Ç¥), and (ii) a new prohibited transaction class exemption for investment advice fiduciaries based on the ?Ç£impartial conduct standards?Ç¥ previously adopted by the DOL (the ?Ç£Proposed Exemption?Ç¥). Reinstated Rule The new rule amends the Code of Federal Regulations to reinstate the prior 1975 regulation which contained the five-part test for determining whether a financial institution or investment professional is a fiduciary for rendering ?Ç£investment advice.?Ç¥… Continue Reading
Under ERISA and the Internal Revenue Code, a fiduciary advisor must qualify for a “prohibited transaction exemption” (“PTE“) in order to receive compensation for providing fiduciary investment advice to plan sponsors, plan participants, and IRA owners. In addition to the proposed fiduciary regulation, the DOL’s “Conflicts of Interest” proposal includes new proposed PTEs and proposes changes to several existing PTEs. The most significant new PTE, the proposed “best interest contract exemption,” would require investment fiduciary advisors to, among other things, enter into contracts with investors that would commit the advisor to acting in the investor’s best interests in order to qualify for the exemption. Links to the proposed new and amended PTEs are available here.
Generally, shares in a leveraged ESOP may be released from the suspense account and allocated to participants?ÇÖ accounts using a principal-only method or a principal and interest method. The IRS recently stated that, if an ESOP allocates shares using the principal-only method but the loan documents require the principal and interest method to be used, there is an operational failure and a prohibited transaction has occurred.?á IRS Technical Advice Memorandum 201425019 can be found here.