On July 25, 2023, the tri-agencies of the Departments of Treasury, Labor, and Health and Human Services (the Departments) issued a compendium of guidance designed to facilitate compliance with the Nonquantitative Treatment Limitation (NQTL) comparative analysis requirements added by the Consolidated Appropriations Act, 2021 (CAA, 2021) as they relate to the Mental Health Parity and Addiction Equity Act (MHPAEA). The guidance signals that employer-sponsored group health plans will have some work to do to improve their mental health and substance abuse treatment provider networks, their data collection efforts to better evaluate the parity in care, and the production of sufficient NQTL comparative analysis reports. 

Provider Access

The guidance is massive and will take time for employers, insurers, and advisors to distill. But, it is clear the Departments have identified access to mental health and substance abuse disorder treatment as a root cause for what they describe as “a mental health and substance use disorder crisis that worsened during the COVID-19 pandemic.”  As noted in the preamble, “ensuring that people seeking mental health and substance use disorder treatment do not face greater barriers to access to benefits for such treatment is central to the fundamental purpose of MHPAEA.” 

To implement this purpose, the regulations require plans or issuers to collect, evaluate, and consider the impact of data on access to mental health and substance abuse benefits before imposing an NQTL in a care classification. Obtaining data has been one of the greatest challenges of the NQTL comparative analysis requirement. The Departments recognize this and specifically request comments on how best to ensure plans and issuers can obtain the information they need from all the entities involved in designing and administrating the plan in support of their MHPAEA compliance efforts. 

Special New Rule Focused on Network Composition

The preamble notes that “[a] key component of access is the availability of an adequate number of appropriate providers within a plan’s network.” Citing a Millman 2019 report that points to a growing disparity of in-network reimbursement rates for primary care providers versus those providing behavioral health care, the proposed regulations conclude that low rates coupled with the high demand for services are negatively impacting access to care. Suppose covered persons cannot access an in-network mental health or substance abuse disorder provider due to limited options, travel, scheduling challenges, or otherwise. In that case, they may not seek the care they need, with the resultant data showing a lack of parity with medical/surgical benefits. 

Therefore, the proposed regulations require that plans and issuers collect and analyze network adequacy data and provider reimbursement rates. Realizing plans and issuers may face significant challenges in ensuring their mental health and substance abuse disorder networks are not more restrictive than their medical/surgical networks, the Departments are soliciting comments in the proposed regulations and the accompanying Technical Release 2023-01P on ways to evaluate parity in networks, including the prospect of a potential enforcement safe harbor for plans and issuers that include data related to network composition in their comparative analyses.   

New NQTL Comparative Analysis Content Requirements. 

The guidance also builds on the 2020 Self-Compliance Tool to address specific content and delivery requirements related to the required NQTL comparative analysis and establishes minimum data collection requirements. In their July 2023 Report to Congress, the Departments again describe the failing grade they are giving the plans related to the NQTL comparative analysis requirements. From not including sufficient information in the initial report to waiting to start the comparative analysis when the investigation began, plans and issuers are not meeting expectations. 

The proposed regulations attempt to bridge this gap, describing specific data and information that is required to be included in the NQTL comparative analysis and specifying when and how the reports must be provided. This falls short of the safe harbor many hoped would be included in the implementing guidance, but the insight is generally welcome.  

Definitions. Examples. And Standards. Oh My!   

The 395 pages of proposed regulations also include countless definitions, examples, and guidelines. They shed light on what the Departments believe to be the problem areas. 

For example, there are specific examples addressing Applied Behavior Analysis (ABA) Therapy. If a plan excludes ABA therapy, a primary treatment for autism spectrum disorder, and that exclusion is separately applicable to autism spectrum disorder benefits and does not apply to any medical or surgical benefits in the same classification, the Departments believe this is a prohibited treatment limitation. 

The regulations are not yet the law. 

The regulations are proposed in form, and the Departments seek stakeholder comments that may result in minor or significant refinements. Employers, therefore, should simply begin to digest these vast resources with their advisors with a keen focus on their network providers. Again, access to mental health and substance abuse disorder care appears to be the number one driving force.

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Attracting and retaining the right people is a critical issue for many retailers, and the 2022 federal retirement plan reform (SECURE 2.0) can help.

SECURE 2.0 requires employers to enroll long-term, part-time workers in their 401(k) plan if they work at least 500 hours per year for at least two consecutive years and are 21 years old or older. Retailers were already facing challenges under the original SECURE Act when it was introduced with a three-year minimum service requirement.   More…

Natalie's Dog

On July 17, the Internal Revenue Service (IRS) issued an advance version of Notice 2023-54 (the Notice) which will include transition relief for plan administrators in connection with the change in the required beginning date for required minimum distributions (RMDs) under §401(a)(9) of the Internal Revenue Code (Code) under §107 of the Setting Every Community Up for Retirement Enhancement Act of 2022 (SECURE 2.0). Plan administrators welcome this guidance as if it had big brown eyes, floppy ears, and a happily wagging tail.

Waiting For Your Puppy to Grow (Effective Date of Final Regs.  Extended)

The IRS previously issued Notice 2022-53, stating that final RMD regulations would not take effect until the 2023 distribution calendar year. The Notice extends that relief and provides, “Final regulations regarding RMDs under § 401(a)(9) and related provisions will apply for calendar years beginning no earlier than 2024.”

It’s OK to Have Accidents (Mischaracterized RMDs Can Be Rolled Over Until September 30, 2023)

Congress modified the RMD rules with the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) in 2019 and again with SECURE 2.0 in 2022. These two modifications changed the date an individual would need to take an RMD. However, due to the timing of the change in the law, some individuals born in 1951 unnecessarily took an RMD in early 2023, and the Notice provides relief to these individuals. Specifically, the Notice states that if a participant born in 1951 received a distribution in 2023 that was treated as ineligible for rollover because it was believed to be a required RMD, that participant has until September 30, 2023, to roll over that distribution.

Consistent Messaging is the Key to Successful Training (IRS – Take Note)

The IRS’s proposed regulations were misunderstood by some who thought that the 10-year rule would apply as the long-standing 5-year rule always had, so there would be no RMD due until the last year of the 5- or 10-year period following the specified event (the death of the employee, the death of the eligible designated beneficiary, or the attainment of the age of majority for the employee’s child who is an eligible designated beneficiary.)  To be clear, the 10-year rule does not allow for a 10-year delay in all cases; if the beneficiary is not an eligible designated beneficiary, annual RMDs are required throughout the 10-year period if the plan participant died on or after his required beginning date.

Conclusion

Compliance with the new rules will require careful analysis, plan amendment, and updated administration like a new puppy requires housebreaking, crate training, and constant supervision. Ultimately, both will provide the warm fuzzy feeling of a job well done.

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist. Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

Transgender protections and rights in the workplace are currently the subject of much confusion.  This issue extends to employer-sponsored health plans.  Whether an employer-sponsored health plan must cover gender-affirming care is complicated and depends, in part, on whether the employer’s health plan is fully-insured or self-insured. 

Fully-Insured Plans

Fully-insured employer-sponsored health plans are subject to state insurance law and applicable federal law.  A fully-insured plan must provide coverage compliant with the coverage mandates of the state in which the insurance policy is issued.  At the time of this post, 24 states plus the District of Columbia have passed laws prohibiting transgender exclusions in insurance coverage.  An employer-sponsored health plan with a fully-insured policy written out of those states (or D.C.) should provide coverage for transgender services and gender-affirming care to the extent required under the applicable local insurance laws.

Self-Insured Plans

Unlike fully-insured plans, self-insured plans are not subject to state insurance laws.  Self-insured plans are subject to certain Federal laws that prohibit discrimination based on certain protected factors, including race, color, national origin, sex, and disability.  Over the last several years, the question of whether “gender identity” is a protected factor has been the subject of much debate and litigation. 

Section 1557 of the Affordable Care Act

Section 1557 of the Affordable Care Act (Section 1557) generally prohibits any health plan that receives certain types of Federal funding from discriminating based on race, color, national origin, sex, or disability.  In July 2022, the U.S. Department of Health and Human Services issued proposed guidance under Section 1557 (Proposed Rule).  The Proposed Rule specifies that Section 1557’s protections extend to discrimination based on gender identity.  Under the Proposed Rule, applicable health plans would be prohibited from categorically excluding coverage for transgender services.  Section 1557 and the Proposed Rule apply only to insurers and third-party administrators that receive Federal financial assistance, such as Medicare Part D subsidies for retiree coverage or as a result of marketing policies on a healthcare marketplace or exchange.  If finalized, the Proposed Rule could affect the design and administration of a fully-insured group health plan if the insurer or third-party administrator receives Federal funding. 

Title VII of the Civil Rights Act

Title VII of the Civil Rights Act (Title VII) prohibits an employer from discriminating against an employee on the basis of race, color, religion, sex, or national origin.  In Bostock v. Clayton County, the Supreme Court held that an employer who terminates an employee because of sexual orientation or gender identity impermissibly discriminates against that employee “on the basis of sex” under Title VII.  The Bostock case focuses on employment termination.  However, Title VII also prohibits employment discrimination “on the basis of sex” regarding “compensation, terms, conditions, or privileges of employment,” including employer-provided benefits. 

In recent years plan participants who have been denied gender-affirming services under their employer-provided group health plans have, generally successfully, brought claims in Federal court alleging that the Bostock ruling prohibits employer-provided group health plans from categorically excluding coverage for gender-affirming care.  For example:

  • In Lange v. Houston County, the U.S. District for the Middle District of Georgia held that, under Bostock, Title VII prohibits the County’s health plan from categorically excluding gender-affirming care.  Lange is currently under appeal in the U.S. Court of Appeals for the Eleventh Circuit.  
  • In Kadel v. Folwell, the U.S. District Court for the Middle District of North Carolina, relying heavily on the Bostock ruling, found that the State of North Carolina violated Title VII’s anti-discrimination requirements by providing a health insurance plan for state employees and their dependents that categorically excluded coverage for treatments “leading to or in connection with sex changes or modifications.”

The law on categorical exclusions for gender-affirming care in self-insured employer-sponsored health plans continues to develop.  We expect the Supreme Court or Congress to issue definitive guidance soon.       

Action Items for Employers

Employers are facing conflicting information about coverage of transgender services.  Employers with fully-insured plans should contact their carrier to confirm the plan complies with local law.  For employers with self-insured plans, the path forward is less clear.  Still, those employers should continue to monitor the issue and work with the plan’s administrator and legal counsel to ensure the plan complies with the evolving law. 

If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to 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.

Thank you to Jackson Lewis summer associate, Jackie C. Graves for her help in developing this article.

High-stress, demanding retail positions where constant customer demands are front and center can leave employees feeling overwhelmed and burnt out, resulting in lower productivity and higher turnover for employers.

Increasing societal awareness of mental health issues, and a general push by employees to recognize their lives outside of the workplace, has fueled a growing call for retail employers to respond to the evolving workforce needs. Retail employees, particularly the younger generations, increasingly seek employers that provide non-traditional benefits as part of a comprehensive benefits program. Consequently, many retailers are prioritizing employee mental health and other wellness-related benefits. The availability of these benefits not only helps recruitment and retention, but it also shows the employer’s investment in the well-being of employees as people and can help companies establish themselves as an employer of choice. More…

As discussed in an earlier blog post, the SECURE 2.0 Act of 2022 (the Act) expanded the Employee Plans Compliance Resolution System (EPCRS), a comprehensive IRS program for correcting common qualified retirement plan failures.  Plan sponsors have three ways to correct mistakes under EPCRS: the self-correction program (SCP), the voluntary correction program (VCP), and the Audit Closing Agreement Program (Audit CAP). 

The Act requires the IRS to update EPCRS consistent with the Act no later than December 29, 2024.  On May 25, 2023, the IRS issued Notice 2023-43 to provide interim guidance on the expansion of EPCRS. 

The Act significantly expands the types of retirement plan failures that can be self-corrected under SCP.  Many plan sponsors prefer SCP over the other programs because it does not involve the IRS or a fee.  Under the expanded program, plan sponsors may self-correct an “eligible inadvertent failure” (EIF) unless the plan or plan sponsor is under examination by the IRS and the plan sponsor has not demonstrated a specific commitment to self-correct it.  However, insignificant failures may be self-corrected even if the plan or plan sponsor is under examination and the plan sponsor has not taken action to correct the failure.  The expanded program is not limited to failures that occurred on or after the Act was adopted; failures that occurred before December 29, 2022, may also be self-corrected under the expanded EPCRS.

Until EPCRS is formally updated, plan sponsors may rely on the Notice and self-correct failures if these conditions are met:

  • The plan sponsor has actively pursued action to self-correct the failure before the plan or plan sponsor is under examination (except for insignificant failures, which may be self-corrected while the plan is under examination).
  • The failure is self-corrected by the last day of the 18th month following the date the failure was identified.  Except for failures related to employer eligibility failures, which must be corrected by the last day of the 6th month following the date the failure was identified.
  • The failure is not egregious, does not directly or indirectly relate to an abusive tax avoidance transaction, and does not relate to the diversion or misuse of plan assets.
  • The self-correction satisfies EPCRS’ provisions for self-correction, except these requirements in the current EPCRS procedure which no longer apply when self-correcting an EIF:
    • The plan must have a favorable determination letter.
    • The prohibition of self-correction for demographic failures and employer eligibility failures.
    • The prohibition of self-correction of certain loan failures.
    • The provisions relating to self-correction of significant failures that have been substantially completed before the plan or plan sponsor is under examination.
    • The requirement that significant failures must be completed or substantially completed by the last day of the third plan year following the plan year in which the failure occurred.

    However, the following are some, but not all, failures that may not be self-corrected until EPCRS is formally updated:

    • A failure to initially adopt a written plan.
    • A failure in an orphan plan.
    • A significant failure in a terminated plan.
    • A demographic failure that is corrected using a method other than a method in Treas. Reg. §1.401(a)(4)-11(g).
    • Plan amendments to conform the terms of the plan to the plan’s past operations if such amendment is less favorable for a participant or beneficiary than the original plan terms.
    • A failure in an ESOP that involves section 409 (other than plan disqualification).

    What Plan Sponsors Should Do:

    • Identify and correct errors before the IRS discovers them.
    • Establish practices and procedures designed to promote and facilitate compliance with IRS requirements.
    • Before filing a VCP application with the IRS, determine whether the failure qualifies for self-correction under the expanded program.
    • Keep adequate records showing when the failure was identified, the participants affected, and how and when the failure was corrected.

    Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance. 

    The February 24, 2023, issuance by the IRS of proposed regulations on the use of forfeitures in qualified retirement plans provides some welcome clarity, regulatory house cleaning, and relief for plan sponsors.  With a proposed effective date of January 1, 2024, these regulations should prompt plan sponsors to review their plan language and procedures for compliance and to consider plan amendments to take advantage of the new rules.

    Defined Contribution (DC) Plans.  The proposed regulations expand and amend the general regulation on forfeitures, Section 1.401-7, to clarify that forfeitures in defined contribution plans (e.g., 401(k) and profit-sharing plans) must be used or allocated under the terms of the plan no later than 12 months following the close of the plan year in which the forfeitures occurred.  Under a transition rule, any forfeitures incurred before January 1, 2024, will be treated as if they were first forfeited in the first plan year beginning on or after January 1, 2024.  The new regulation states that a DC plan may use forfeitures for one or more of these purposes:  

    • Payment of plan administrative expenses; 
    • To reduce employer contributions; and
    • To increase benefits in other participants’ accounts under the plan’s terms.

    These revised forfeiture rules would essentially formalize what in the past has been informal IRS guidance for DC plan forfeitures.  That guidance, expressed in a 2010 IRS Retirement News for Employers, generally required that forfeitures be used no later than the year in which the forfeitures arose while vaguely allowing an additional year to use the forfeitures where the situation demanded it.  Unclear regulatory and informal guidance has resulted in many plans carrying forward forfeitures that are even older than two years.  The transition relief offered for pre-2024 incurred forfeitures is welcome, but many sponsors may need plan amendments and revised administrative procedures to use or allocate their “legacy forfeitures” in order to take advantage of it.

    Defined Benefit (DB) Plans.  For defined benefit pension plans, the proposed regulations correct an inconsistency or conflict in the Treasury Regulations.  The current general regulation on the use of forfeitures requires that pension plan forfeitures be used as soon as possible to reduce the employer’s contributions under the plan, but may not be used to increase employee pension benefits.  Further, it provides that a pension plan may “anticipate the effect of forfeitures in determining the costs under the plan.” By contrast, the current minimum funding standards for defined benefit plans under Internal Revenue Code Sections 430, 431, and 433 do not provide that forfeitures may directly offset required employer plan contributions; rather those Sections instead require the use of reasonable actuarial assumptions to determine the effect of expected forfeitures on plan liabilities.  The new proposed regulation deletes the provision allowing a direct reduction of employer pension plan contributions by the amount of forfeitures.  It now simply states that the effect of forfeitures may be anticipated in actuarially determining the costs under the plan under the Code’s defined benefit plan funding standards.

    If you have any questions, the Jackson Lewis Employee Benefits Practice Group members are available to assist.  Please contact a Jackson Lewis employee benefits team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

    We previously wrote about President Biden’s announcement to end the COVID-19 Public Health Emergency (PHE) and National Emergency (NE) periods on May 11, 2023, and the practical ramifications for employer group health plan sponsors as they administer COBRA, special enrollment, and other related deadlines tied to the end of the NE. As discussed, this action generally meant that all applicable deadlines were tolled until the end of the NE plus 60 days, or July 10, 2023, with all regular (non-extended) deadlines taking effect for applicable events occurring after that. 

    A Change in the National Emergency End Date

    A new wrinkle recently added a potential complication to calculating these deadlines. President Biden signed H.R. Res. 7 into law on April 10, 2023, after  Congress jointly introduced H.R. Res. 7 as a one-line action to end the NE, effective immediately. The consequence is that the applicable end of the transition relief is now June 9, 2023 (60 days following April 10, 2023) instead of July 10, 2023, as previously anticipated. The Department of Labor (DOL), however, has informally announced that despite the statutory end of the NE being 30 days earlier than expected, to avoid potential confusion and changes to administrative processes already in progress, the deadline of July 10, 2023, will remain the relevant date for COBRA, special enrollment, and other related deadlines under previous guidance. Prophetically, updated FAQs, released March 29, 2023, by the DOL, Department of Treasury, and Department of Health and Human Services (the Agencies), provide, “the relief generally continues until 60 days after the announced end of the COVID-19 National Emergency or another date announced by DOL, the Treasury Department, and the IRS (the “Outbreak Period”). [emphasis added]”  Further clarification and formal guidance are still expected.

    Updated DOL FAQ Guidance

    As discussed in our previous article on this topic, most employers rely on third-party vendors and consultants to help administer COBRA, special enrollments, claims, appeals, etc. All should be aware of the impact the end of the NE and PHE has on all applicable deadlines. The FAQs provide at Q/A-5 specific examples to help employers, consultants, and administrators apply the end of NE and PHE deadlines and different scenarios related to COBRA elections and payments before and after the end of the Outbreak Period, special enrollment events, Medicaid election changes, etc. The FAQs also make clear that employers are encouraged to consider extending these deadlines for the current plan year. Employers should discuss the impact of this guidance with their vendors and consultants to ensure all parties comply with the upcoming transitional periods.

    The FAQs also confirm (at Q/A 1-4) the impact of the end of the PHE on COVID-19-related testing and diagnostic procedures, noting that as of the end of the PHE on May 11, 2023, group health plans are no longer required to provide certain COVID-19 related coverage at 100 percent under the plan, but can revert to previous cost-sharing and deductible limitations that existed before the COVID-19 pandemic. Note that President Biden’s recent action approving the end of the NE on April 10, 2023, has no impact on the previously communicated end to the PHE on May 11, 2023. Employers should review changes in coverage of COVID-19 testing and other related treatment or procedures with their insurance carriers, consultants, and advisors, including any notices that may be required in connection with those changes. The DOL confirmed that while encouraged to do so, employers do not have to provide any separate notification of any changes in current coverage limits before the PHE end date unless the employer had previously disclosed a different level of coverage in its current Summary of Benefits and Coverage (SBC) provided during the most recent open enrollment period.

    COVID-19 Testing and Treatment Under High Deductible Health Plan/Health Savings Accounts

    Q/A-8 of the FAQs provides interim clarification regarding the impact of the end of the PHE on high-deductible health plans (HDHPs) that are tied to health savings accounts (HSAs) and the ability to provide medical coverage for COVID-19 testing or treatment without requiring an employee to satisfy applicable HDHP deductibles for HSA contribution purposes. Even though IRS Notice 2020-15 provided relief from general deductible limitations under Code Section 223(c)(1) through the end of the PHE, the Agencies have determined this relief will remain in effect after the end of the PHE and until the IRS issues further guidance. 

    This area is quickly evolving, with compliance deadlines rapidly approaching. If you have any questions, please contact the Jackson Lewis attorney with whom you regularly work or any member of the Employee Benefits group.

    baseball-bat-ball

    Baseball season has just started, and retirement plan auditing season will soon kick into high gear. Many plan sponsors don’t see the value of a good auditor; they just see the audit as a cost of doing business. That’s too bad because these days when a plan sponsor becomes aware of an operational problem in the plan, it’s frequently the auditor who discovers it. The longer a plan mistake goes on without being caught, the more expensive it is to fix it, so a good auditor can save a plan sponsor a lot of money by catching errors sooner than later. Unfortunately, like with any other business, not everyone doing benefit plan audits is good at it. The Department of Labor released a study in 2015 that found that the fewer plan audits a CPA firm does, the more likely it is that there will be significant deficiencies in its audit process. That, of course, increases the risk to the plan and its sponsor. An updated study should be released this year, and the results aren’t expected to be much better.

    Last year in its Employee Plans News (the June 3, 2022, issue), via an online post with very few details, the IRS announced a new pilot program that gives plan sponsors an advance warning of a potential audit. The IRS will send the sponsor a notice that it intends to audit the plan, and the sponsor has 90 days to look into the plan’s document and operational compliance and report its findings back to the IRS. From there, the IRS can decide whether it will go ahead with a full audit, a limited audit, or no audit. The advantage of this pilot program is that any issues that the plan sponsor discovers during the 90-day period can be fixed via the Employee Plans Compliance Resolution System (EPCRS) using either the Self-Correction or the Voluntary Correction Program. This approach is much less expensive than paying the penalties that the IRS would assess if they discovered the issue during an audit.

    The 90-day window seems like a decent amount of time to get a handle on whether the plan has any operational problems, but it doesn’t consider how long it takes to prepare for and perform the annual plan audit. This makes having a good plan auditor more important than ever. A sponsor who gets a pre-audit notice from the IRS will be in a much better place because the auditors will have looked closely at how the plan runs every year. It’s also a good idea for a sponsor who gets one of these notices to, if possible, bring the auditor back in during those 90 days to do some additional testing of the plan’s operations. Needless to say, the plan’s legal counsel needs to be involved too.

    It was already smart to hire a CPA firm with a lot of knowledge and experience in benefit plan audits – now, it could help save a plan sponsor from an IRS audit.

    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.

    Cake-with-candles-1

    With another National Employee Benefits Day upon us, it is a good reminder for all involved in the world of Employee Benefits to pause (take three deep breaths) and use it as an opportunity to look back at where we’ve been over the last year and where we are going. While the challenges are many, the work is more valuable than ever.

    One constant over the last few tumultuous years is change. From the compliance perspective, employers like certainty (plan advisors do, too), and recently there has been anything but. This is true now more than ever across all areas of benefits and is likely to be the case for years to come.

    It is no surprise (pun intended) that health and welfare plan administration continues to occupy more time and attention than ever before. Plans continue to grapple with compliance with Mental Health Parity, Transparency in Coverage, the No Surprises Act, and other recent changes that define how group health plans need to operate (both at the federal and state level). Traditionally, an area in which plans operated more autonomously, health plan administration and compliance have become increasingly complex and will continue to grow more complicated, particularly for multi-state plans. Add to that already full plate the need to navigate the issues following the U.S. Supreme Court’s decision in Dobbs, many of which will continue to evolve for years to come, and recent state and federal attention on pharmacy benefits.

    As we approach the end of the Public Health Emergency and National Emergency, benefit plans should also pay close attention to unwinding the temporary relief provided at the outset of the pandemic. This includes close attention to COBRA, special enrollment and claims deadlines, and decisions on coverage of COVID-19 diagnostic testing, treatment, vaccines, and telehealth under group health plans. And for good measure, plans now need to consider a recent court decision invalidating the ACA’s preventative care mandate.

    Retirement plan design and administration are not immune from the wave of change. Eagerly awaited retirement plan legislation in the form of SECURE 2.0 finally arrived at the end of last year, bringing with it a panoply of mandatory and optional changes for the consideration of plan sponsors. With an eye toward increasing retirement savings and expanding coverage within the private plan system, SECURE 2.0 will spawn more guidance and implementation efforts for years to come. Plan fiduciaries are also confronting the push and pull of the role of ESG investments in retirement plan fund lineups – including trying to keep straight the regulatory, legislative, and judicial attempts to weigh in on the proper role of ESG investments, and for that matter, what even is an ESG investment. All of this change comes against the broader backdrop of market volatility and continued concerns of a recession/inflation, increasing the spotlight on financial wellness initiatives.

    Finally, and perhaps most important, well-being, balance, and mental health remain at the forefront. Clearly not confined to the pandemic, attention to the needs of all employees’ pursuit of the elusive “work-life balance” is more important now than ever, especially as the lines between work and home promise to be blurred for the foreseeable future given the persistence of remote/hybrid work. While many of these change-inducing events are far beyond our control, as benefits professionals, we have ridden this wave before and will continue to do so. We are reminded that change creates new opportunities to design important, sustaining benefits that serve the lives of employees and their families. Keep up the fight, and Happy Employee Benefits Day!