Introduction

On August 7, 2025, President Donald J. Trump issued an Executive Order designed to broaden access to alternative investments, such as private equity, commodities, real estate, and certain digital assets, for participants in 401(k) and other defined contribution retirement plans. The initiative is framed as an effort to “democratize” investment opportunities that were historically limited to institutional and high-net-worth investors.

While the headlines emphasize new investment possibilities, ERISA fiduciaries must proceed with caution. The Executive Order sets policy direction, but it does not alter fiduciary obligations under ERISA. Moreover, in light of recent Supreme Court precedent, fiduciaries should reexamine how much reliance they can place on agency guidance and regulations when making decisions about designated plan investment options.

What This Means for Fiduciaries of ERISA-Covered Plans

1. A Green Light to Explore

The Executive Order directs the Department of Labor (DOL) and the Securities and Exchange Commission (SEC) to revisit existing rules and guidance. Future action may clarify how alternative assets may be offered in defined contribution plans and whether new safe harbors will be created. Until then, ERISA fiduciary duties of prudence, loyalty, and diversification remain unchanged.

2. New Opportunities, Greater Risks

Alternative investments may offer enhanced diversification and the potential for stronger long-term returns. At the same time, they present significant challenges: higher fees, illiquidity, valuation challenges, reduced transparency, reduced oversight, and in many cases greater volatility. Fiduciaries considering these options must demonstrate a prudent, well-documented process showing the decision serves participants’ best interests.

3. More Moving Parts, More Diligence Required

Unlike publicly traded mutual funds or index funds, many alternative assets do not price daily and may impose withdrawal or transfer restrictions. Fiduciaries must coordinate with recordkeepers, custodians, and investment professionals to assess operational feasibility before offering such options under a plan.

The Loper Bright Factor: Reliance on Future Regulations

In June 2024, the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overturned the longstanding Chevron deference doctrine, which had required courts to defer to reasonable agency interpretations of ambiguous statutes.

This shift means that even if the DOL issues a safe harbor for alternative assets, courts may ultimately determine that such rules exceed statutory authority. Fiduciaries cannot rely solely on agency guidance to shield decisions from challenge—they must independently ensure that all actions align with ERISA’s statutory text and fiduciary standards.

Next Steps for Plan Fiduciaries

Conduct a Forward-Looking Assessment

Fiduciaries should evaluate how alternatives would perform under varying market conditions, how higher expenses could affect total returns, and whether the additional complexity provides sufficient value compared to simpler, lower-cost options.  Fiduciaries also should consider whether their plan demographics, including participant withdrawal norms and the investment sophistication of their participants, should influence the decision.

Analyze the Most Prudent Offering Structure

For many plans, offering alternatives through a diversified, professionally managed vehicle—such as a collective investment trust—may be more prudent than providing participants direct access through a brokerage window. Managed structures can help control allocations and mitigate risk. 

Develop a Participant Education Strategy

If alternatives are offered, participants will need clear, accessible explanations of both benefits and risks. Fiduciaries should consider:

  • Examples illustrating how alternatives differ from traditional asset classes.
  • Educational materials tailored to participants unfamiliar with illiquid or complex products.
  • Enhancements to managed account programs to better integrate new investment classes.

Anticipate the Regulatory Curve

The DOL and SEC are expected to issue further guidance and potentially safe harbor provisions in the months ahead. Subject to the caveat raised by Loper Bright, fiduciaries should be ready to act promptly once rules are finalized. This may include amending investment policy statements, revising service provider contracts, or updating plan documents.

Action Steps for Fiduciaries

Immediate Steps

  • Monitor the rulemaking process and related litigation.
  • Begin preliminary due diligence on potential alternative investments.
  • Review governance documents to confirm they support new investment structures.
  • Evaluate what impact, if any, alternative investments would have on fiduciary insurance policies, plan audits, and Form 5500 reporting.
  • Determine whether responsibility for evaluating alternative investments should be delegated to an ERISA Section 3(38) investment manager – an investment fiduciary who assumes responsibility for investment decisions.

Upon Issuance of Guidance

  • Update the investment policy statement to include criteria for evaluating and monitoring alternatives.
  • Document each step of the decision-making process, with an emphasis on statutory compliance and regulatory guidance (in light of Loper Bright).
  • Coordinate with service providers to ensure fiduciary decisions can be implemented effectively.

Ongoing

  • Continue to review performance, fees, liquidity, and participant outcomes.
  • Monitor market developments and legal challenges to agency rules.

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The Top Three Issues Fiduciary Committees Should Be Discussing at Their Next Meeting

  1. How do the potential investment alternatives align with our participants’ demographics and needs? Will higher fees, limited liquidity, or added complexity serve participants, given their investment horizons and withdrawal patterns?
  2. What structures provide the right balance of access and protection?  Should alternatives be offered only through managed vehicles, or are there hybrid structures worth considering?
  3. How do we mitigate risk and build a defensible fiduciary record? In light of Loper Bright, what steps are we taking to ensure our process is independently prudent—beyond simply following DOL or SEC guidance?  Do we have the skills to make these decisions, or should we engage a fiduciary investment manager to assume this responsibility?

The Jackson Lewis Employee Benefits Practice Group members can assist if you have questions or need assistance. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.  Subscribe to the Benefits Law Advisor Blog.

It is increasingly evident that artificial intelligence (AI) is reshaping all facets of business, and its impact on employee benefit plans is no exception. From automating plan administration to personalizing participant communications, AI introduces both new opportunities and new responsibilities for those overseeing Employee Retirement Income Security Act of 1974 (ERISA)-covered retirement and health plans (Plans).

Plan sponsors and fiduciaries should understand how AI intersects with their legal obligations under ERISA and take proactive steps to leverage this technology responsibly to improve participant outcomes.

How AI is Already Impacting Plan Operations

AI technologies are already being integrated into various aspects of Plan management and operations. Fiduciaries should understand how these technologies can benefit participants and beneficiaries—and how to mitigate associated risks. Ignoring AI is no longer a prudent option.

For example, AI-driven platforms can analyze individual participant data to deliver tailored communications that support retirement readiness. AI-automated systems also streamline manual and repetitive tasks, reducing processing time, limiting errors, and improving compliance. These systems can process loans, hardship withdrawals, and domestic relations orders.

However, because AI is not infallible, regular validation is essential. To comply with ERISA’s prudence requirements, fiduciaries should not delegate critical responsibilities to AI without implementing ongoing oversight and monitoring protocols.

Cybersecurity and Fraud Detection

Fiduciaries have an obligation to protect participants’ personal and financial data, which includes adopting and maintaining robust cybersecurity practices. (See: Compliance Assistance Release 2024-01.)

AI-based fraud detection systems can identify anomalies in account access and distribution activity, helping protect participants from unauthorized transactions. Given AI’s capabilities, fiduciaries may face increased scrutiny if they fail to explore AI solutions that bolster account security.

At the same time, integrating AI can introduce new cybersecurity vulnerabilities. Fiduciaries should understand how AI tools operate to strengthen Plan cybersecurity without inadvertently creating risks that harm participants.

Investment Management Tools

Most fiduciaries engage professional advisors to assist with Plan investment options. As a best practice, fiduciaries should ask prospective advisors whether—and how—they use AI-enabled tools to help participants optimize their investment decisions. Similarly, fiduciaries should evaluate how advisors use AI to assess Plan investment performance and strategy.

Vendor Selection and Monitoring

Diligence in vendor selection is critical when working with AI-driven services. Fiduciaries should understand how the AI models are built, what data they use, how results are validated, and whether cybersecurity and privacy controls are adequate.

Vendor contracts should specifically address:

  • Data usage rights and limitations
  • Indemnification provisions
  • Insurance requirements
  • Audit rights and transparency obligations

Transparency and Explainability

Fiduciaries should understand how AI-based decisions are made. Reliance on “black box” AI systems—where the internal logic is opaque—could run afoul of ERISA’s prudence standards. Ongoing monitoring of AI vendors, including thorough audits and performance reviews, is essential to ensuring continued compliance.

AI Data Sources and Governance

AI outputs are only as reliable as the data they rely on. Fiduciaries should make sure the data driving AI tools is accurate, current, complete, and secure. Implementing robust processes for data validation and correction is a key governance priority.

Actionable Steps for Plan Sponsors and Fiduciaries

While AI presents significant opportunities, its deployment should be subject to rigorous oversight. AI should complement, not replace, traditional methods of Plan management. Fiduciaries should evaluate and monitor AI through the lens of ERISA’s fiduciary standards.

Recommended action items include:

  • Integrate AI risk management into the Plan’s overall governance strategy
  • Evaluate and document how AI tools impact investment selection, recordkeeping, and participant advice
  • Review and revise service provider contracts to include AI-specific clauses
  • Conduct initial and periodic due diligence on vendors, involving technical experts as needed

The Jackson Lewis Employee Benefits Practice Group members can assist if you have questions or need assistance. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work. Subscribe to the Benefits Law Advisor Blog.

In an opinion issued on May 15, 2025, the State of New York Tax Appeals Tribunal, the highest administrative forum for state tax appeals, upheld the application of the state’s income tax “convenience rule” imposing New York tax on wages earned by a New York City law school professor while he worked from his Connecticut residence before and during the COVID pandemic. The petitions had been filed by taxpayers Edward A. and Doris Zelinksy.  An appeal of this decision to a New York appellate court is expected. 

The opinion affirms the November 30, 2023 determination of an Administrative Law Judge (“ALJ”) in the case. It accepts most of the ALJ’s reasoning while providing its own rationale on the constitutional and state law issues that will serve as guidance to the New York Department of Taxation and Finance and to New York-based employers with remote or hybrid nonresident employees working all or part-time in other states. The Department’s current administrative position on the convenience rule and the strict “home office” exemption can be found here. Please refer to this link for a discussion of the facts of the case and the 2023 ALJ determination.

The following are important takeaways from the Tribunal’s opinion:

  • Most remote work will not be found to be for the employer’s business “necessity.” The Tribunal states that under the convenience rule New York will not tax a nonresident’s income if it derives from a New York employer’s participation in interstate commerce through the creation of a tax nexus in another state because of the business necessity for the employee to work in the other state. Therefore, hiring remotely in other states simply because that is where the best employee candidates reside and prefer to work for their convenience will apparently never provide sufficient nexus or participation in interstate commerce to avoid the imposition of New York income tax and wage withholding on the wages earned by such nonresidents.
  • Constitutional due process was deemed satisfied because the taxpayer both worked in New York for part of the time during each year and availed himself of the economic market in New York through his employment with a New York-based employer. This is essentially the same rationale adopted by the ALJ in the case. In that earlier determination, the judge found that in our “modern economy” a virtual presence in New York through zoom meetings and internet technology was sufficient presence in New York to justify the convenience rule on constitutional grounds.
  • Nevertheless, it remains unclear whether a nonresident employee must work at least one day a year while physically in New York for the convenience rule to apply. The applicable New York income tax regulation adopting the convenience rule is, by its terms, applicable where a nonresident employee performs services for his New York employer both within and without the state. The Tribunal’s opinion makes repeated reference to this convenience rule condition. Apparently, however, Department income and employment tax auditors have taken the position that New York-based employers and their nonresident employees physically working solely outside of New York during a tax year are nevertheless subject to the convenience rule for income tax and wage withholding purposes. Therefore, a central issue remains as to whether the virtual presence in New York of a remote nonresident employee who is linked to his or her New York-based employer through the internet and other electronic means effectively eliminates the need for the employee to have physically worked in New York during a year in order for New York income tax to apply under the convenience rule or even apart from that rule. It seems that an administrative or judicial decision on the taxation of an always remote nonresident employee who never sets foot in New York will be necessary to get some resolution of that issue. In the meantime, employers desiring to support a basis for the non-applicability of the convenience rule should, wherever possible, document terms of employment without mentioning the necessity, or even the possibility, of the employee’s physical presence in New York for work.

Jackson Lewis attorneys advise many clients on how to plan for and deal with the income tax convenience rules of New York and other states. If you have questions or need assistance, please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.

A Texas federal court just shook the foundation of HIPAA’s reproductive health privacy protections — but the Supreme Court may have the final word. In a sweeping decision, Judge Matthew Kacsmaryk vacated key provisions of the 2024 Reproductive Health Rule, stripping away national safeguards on disclosing reproductive health information. Yet, a recent SCOTUS ruling in Trump v. CASA, Inc. could rein in the reach of that decision. What does this mean for healthcare providers, insurers, and patients navigating a patchwork of federal and state privacy laws?  More…

Takeaways

  • Republicans in the U.S. House of Representatives attempt to deliver on President Trump’s campaign promises in the One Big Beautiful Bill Act (BBB or the Act), which passed the House by a razor-thin margin of 215 in favor and 214 opposed on May 22, 2025. 
  • BBB shows favoritism of Health Savings Accounts and Health Reimbursement Account benefits, making changes to broaden their scope, increase utilization, and bolster savings.  
  • The Act also provides a glimpse into legislative or regulatory changes that may be on the horizon for ERISA-governed plans, including standards for Pharmacy Benefit Manager compensation, contractual requirements, and disclosures applicable to government-subsidized plans. 

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The goal of the U.S. Senate is to pass One Big Beautiful Bill in a form on which Senators can agree, send it back to the U.S. House of Representatives, who then would have it on President Trump’s desk for signature by July 4, 2025.  Time will tell whether this accelerated schedule is practical and what ultimately makes its way into federal law. 

Without getting too far ahead of the legislative process and certainly staying out of the weeds of the 1,038 pages of legislative proposals, the BBB reveals fringe benefit, health and welfare benefit, and executive compensation priorities.  The legislation also tips the hand of the Trump Administration, shining a light on areas in which we may see additional activity. 

HSA, HRA Improvements

It is clear that House Republicans like Health Savings Accounts (HSA) and Health Reimbursement Accounts (HRA).  There are pages of text aimed at expanding eligibility (including permitting Medicare-eligible enrollees to contribute to HSAs), increasing savings opportunities, allowing rollovers from other healthcare accounts, and permitting the reimbursement of qualified sports and fitness expenses.  If the Act becomes law, employers offering HSA or HRA benefits will have some new bells and whistles to add to their programs.  

Fringe Benefits That Make Education and Childcare More Affordable

With a focus on families and paying down student loan debt, BBB makes permanent an employer’s ability to make student loan debt repayments on a tax-favored basis under Section 127 of the tax code.  BBB also enhances the employer-provided childcare tax credit, further incentivizing employers to provide childcare services to their employees.  Whether the employer operates a childcare facility or pays amounts under a contract with a qualified childcare facility, BBB entices employers to add this much-needed employee benefit.   

Executive Compensation Changes

The executive compensation changes baked into BBB are designed to help pay for some of the other changes.  BBB expands the application of the excise tax on certain tax-exempt organizations paying compensation over $1 million (or excess parachute payments) to include former employees (think: severance).  BBB also requires public companies to allocate the Internal Revenue Code Section 162(m) $1 million deduction limit among controlled group members relative to compensation when specified covered employees receive pay from those related employers. 

Tax Cuts and Jobs Act Extension

A priority of President Trump, who touted extending his tax cuts during the campaign trail, BBB extends and makes permanent the Tax Cuts and Jobs Act changes.  For example, BBB permanently makes qualified moving expense reimbursements taxable.

Pharmacy Benefit Manager Regulation   

BBB also includes a few surprise new twists related to Pharmacy Benefit Managers (PBM).  Although the legislative reforms currently focus on Medicaid and prescription drug programs subsidized by the federal government (e.g., Medicare Part D plans, including Employer Group Waiver Plans for retirees absent a waiver), it is clear that the Trump Administration and Republicans in Congress seek transparent and fair pricing of prescription drugs.  These initiatives eventually may spill over to apply to ERISA-governed plans, in furtherance of President Trump’s Executive Orders advancing Most-Favored Nation prescription drug pricing and directing increased transparency over PBM direct and indirect compensation.  So, the changes are worthy of note by all employers that use PBMs. 

For Medicaid, BBB prohibits the “spread pricing” model in favor of “transparent prescription drug pass-through pricing model,” which essentially is cost-plus pricing.  No more than fair market value can be paid for PBM administrative services. 

In the case of Medicare Part D plans, BBB imposes contractual requirements limiting PBM compensation to bona fide service fees.  Rebates, incentives, and other price concessions all would need to be passed on to the plan sponsor.  Further, the PBM would be required to define and apply in a fully transparent and consistent manner against pricing guarantees and performance measures terms such as “generic drug,” “brand name drug,” and “specialty drug.” 

Transparency also is paramount.  BBB requires PBMs not only to disclose their compensation, but also their costs and any contractual arrangements with drug manufacturers for rebates, among other details.   

It certainly is possible these PBM reforms are coming to an ERISA plan near you.  BBB provides a roadmap for the Department of Labor’s Employee Benefits Security Administration to issue ERISA fiduciary standards, best practices, or disclosure requirements.

The Jackson Lewis Employee Benefits Practice Group members can assist if you have questions or need assistance. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.  Subscribe to the Benefits Law Advisor Blog here.

On June 2, 2025, the U.S. Department of Labor (DOL) announced a significant expansion of its compliance assistance tools by launching an Opinion Letter Program across five key enforcement agencies, including the Employee Benefits Security Administration (EBSA). This initiative aims to provide employers, plan sponsors, and other stakeholders with clear, tailored guidance on complex issues related to employee benefit plans.

Deputy Secretary of Labor Keith Sonderling emphasized the importance of this program, stating,

“Opinion letters are an important tool in ensuring workers and businesses alike have access to clear, practical guidance.”

Understanding the EBSA’s Role

The EBSA is responsible for enforcing the Employee Retirement Income Security Act (ERISA), which governs private-sector retirement and health plans. Under the new program, EBSA will issue two types of opinion letters:

  • Advisory Opinions: These apply the law to specific factual situations presented by requesters.  Note that the EBSA will not issue an advisory opinion with respect to a matter that is the subject of investigation or litigation at the time the request is submitted.   
  • Information Letters: These provide general interpretations of the law without applying it to specific facts.

This dual approach allows EBSA to address both specific inquiries and broader issues affecting multiple stakeholders.

Exercise caution. Opinion letters have certain limitations in their application as outlined in ERISA Procedure 76-1. In the case of advisory opinions, the opinion assumes that all material facts and representations set forth in the request are accurate, and the opinion applies only to the situation described therein. Your particular circumstances may be different enough to warrant a different result. Additionally, only the parties described in the request for opinion may rely on the opinion, and they may rely on the opinion only to the extent that the request fully and accurately contains all the material facts and representations necessary to issuance of the opinion. Information letters, on the other hand, are informational only and not binding on the department. So, again, while opinion letters may be helpful, plan sponsors should consult with counsel or other ERISA experts to assess a particular opinion’s application to the circumstances at issue.

Why This Matters for Plan Sponsors?

Navigating the complexities of ERISA compliance can be challenging. The new Opinion Letter Program offers several benefits:

  • Clarity, Consistency, and Transparency: Obtain guidance, at least from the agency’s perspective, on complex issues, reducing uncertainty.
  • Compliance Assistance: Having greater opportunity to seek and access opinion letters will help to ensure that plan administration will align with current interpretations of the law.
  • Risk Mitigation: The ability to address plan design and compliance issues proactively can potentially avoid costly corrective measures and penalties.

Common Issues Addressed

Plan sponsors often face recurring challenges where guidance has been limited or ambiguous. The Opinion Letter Program potentially can provide clarity on issues such as:

  • Locating Missing Participants: Strategies for finding former employees to distribute 401(k) benefits.
  • Cybersecurity Measures: Implementing appropriate safeguards for plan data.
  • Plan Terminations: Proper procedures for winding down plans and distributing assets.
  • Fiduciary Responsibilities: Clarifying the extent of fiduciary duties in various scenarios.

Finding and Applying Opinion Letters

EBSA maintains a database of prior opinion letters.  The EBSA’s Resource Center for Advisory Opinions, provides a tool for searching available opinion letters by year and regulatory reference.  

How to Request an Opinion Letter

Anyone can request an opinion letter, including workers, employers, employment associations, lawyers, human resource professionals, unions and industry leaders. To request an opinion letter, the requesting party or their representatives should submit a detailed inquiry to EBSA, outlining the specific facts and questions for which guidance is sought. The request should be directed to the Office of Regulations and Interpretations. More information, including submission guidelines, is available on the DOL’s website.

The DOL’s expansion of the Opinion Letter Program represents a proactive step toward enhancing compliance assistance for plan sponsors. By providing clear, authoritative guidance on complex issues, the program empowers employers to administer their benefit plans confidently and in accordance with the law.

Takeaway

  • The 2025 CAR does not alter ERISA’s substantive fiduciary standards and considerations but eases the DOL’s previously hostile enforcement stance toward cryptocurrency and similar digital assets in 401(k) plans, restoring a “neutral” DOL enforcement approach. 401(k) plan fiduciaries must still consider all relevant ERISA factors and apply the necessary care, skill, prudence, and diligence required by ERISA in managing their 401(k) plan fund lineup. They can now feel more assured that a decision to include cryptocurrency in their 401(k) plan will not be subjected to increased scrutiny by the DOL; however, they must remain vigilant regarding the risk of potential participant claims and class actions.

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On May 28, 2025, the DOL released Compliance Assistance Release No. 2025-01. The 2025 CAR rescinds the DOL’s previous Compliance Assistance Release No. 2022-01 (2022 CAR), issued in 2022, which indicated an unfavorable DOL enforcement stance on including cryptocurrency and similar digital assets in 401(k) plan fund lineups.

In rescinding the prior guidance, the DOL states that the 2022 CAR articulated a standard of care that was inconsistent with ERISA’s fiduciary principles, and that the 2025 CAR “restores the [DOL’s] historical approach by neither endorsing, nor disapproving of, plan fiduciaries who conclude that the inclusion of cryptocurrency in a plan’s investment menu is appropriate.”

The DOL further reminds plan fiduciaries that, “[w]hen evaluating any particular investment type, a plan fiduciary’s decision should consider all relevant facts and circumstances and will “necessarily be context specific”, and that fiduciaries must “curate a plan’s investment menu ‘with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims’ for the ‘exclusive purpose’ of maximizing risk-adjusted financial returns to the plan’s participants and beneficiaries.”

The Jackson Lewis Employee Benefits Practice Group members can assist if you have questions or need assistance. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.  Subscribe to the Benefits Law Advisor Blog here.

Takeaway

  • The Third Circuit recently expanded the ability of multiemployer pension plans to collect withdrawal liability from affiliated employers, highlighting the need for employers to engage counsel with specialized expertise in this complex and dynamic area of law.

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The Third Circuit’s recent ruling enhanced a pension fund’s ability to pursue withdrawal liability collection against affiliated employers. The decision underscores the evolving nature of ERISA, its remedial purpose, and the challenges facing employers with multiemployer pension obligations.

Under ERISA, withdrawal liability assessments that are not timely contested become due and owing, permitting the fund to pursue collection against any affiliated employer. Here, the court held that a settlement agreement resolving the initial withdrawal liability assessment was itself a revised withdrawal liability assessment. When the “revised” assessment was (not surprisingly) not challenged in arbitration, the fund was permitted to pursue collection of the amounts due under the settlement agreement against affiliates not party to the agreement.  This interpretation opens new avenues for pension funds to pursue claims against affiliated employers, emphasizing the broad and protective stance courts often take towards pension plan participants to the detriment of employers.

To delve deeper into the specifics of this ruling and its broader implications, read the full article on our website. It provides a comprehensive analysis of the case, the court’s reasoning, and practical takeaways for employers and practitioners alike. Don’t miss out on this essential update in employee benefits law.

Please contact Robert Perry or David Pixley if you have questions or need assistance in this area. Subscribe to the Benefits Law Advisor Blog here.

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On May 15, 2025, the Departments of Labor, Treasury, and Health and Human Services issued their anticipated nonenforcement policy regarding the 2024 Mental Health Parity regulations.  As expected, nonenforcement is applicable “only with respect to those portions of the 2024 Final Rule that are new in relation to the 2013 final rule.”  (Emphasis added.)  The Departments reiterated that “MHPAEA’s statutory obligations, as amended by the CAA, 2021, continue to have effect.”  Thus, the requirement to perform and document comparative analyses of health plans’ nonquantitative treatment limitations remains in effect, but the requirement for a plan fiduciary to certify that it complied with its fiduciary duties in selecting and monitoring a service provider to perform and document the comparative analyses will not be enforced until future notice.  Also, specific content requirements that weren’t already set out in the statute or prior regulations won’t be enforced until future notice. 

Perhaps the most interesting part of the statement for group health plan sponsors (especially those with plans under investigation) relates to the Departments’ intention to “undertake a broader reexamination of each department’s respective enforcement approach under MHPAEA, including those provisions amended by the CAA, 2021.”  The Department of Labor has been accused of overreaching in its enforcement investigations, for example, by citing plans for failing to meet specific comparative analysis content requirements before those requirements were known.  While it remains to be seen how the nonenforcement policy might affect open investigations, the Departments encourage plans to continue to rely on the prior regulations and subregulatory guidance.  Plans should be alert to any updates the Departments make to subregulatory guidance. 

The Jackson Lewis Employee Benefits Practice Group members can assist if you have questions or need assistance. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work.  Subscribe to the Benefits Law Advisor Blog here.