Close Counts in Horseshoes & Hand Grenades: But Not ERISA

ERISA is full of statutory deadlines, includes those related to disclosing Summary Plan Descriptions, changes enacted through Plan Amendments, required financial information, and governmental filings. Perhaps none of those deadlines is more critical than those related to the claims and appeals rules. Participants that are denied benefits are likely to sue. And as shown in the case of Fessenden v. Reliance Standard Life Insurance Co and Oracle USA, Inc.,...

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Department of Labor Dials Back ESG Investing Regulations

The Department of Labor has issued its final rules on the investment duties of fiduciaries under the Employee Retirement Income Security Act (“ERISA”). These rules differed from the proposed rules issued over the summer which required additional responsibility for retirement plans who wanted to consider environmental, social, or governance factors in their investing (known as “ESG” investments). This is of particular concern to Taft-Hartley Plans, who often include investment...

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Public Employees and the Use of Social Media

Are political posts shared on social medical by Ohio public employees protected speech under the law? In short, it is unclear. The answer ultimately depends on how the activity is categorized under the Ohio Administrative Code (“OAC”). OAC section 123:1-46-02 separates protected (subsection B) and prohibited (subsection C) political activities. Although government employees do not completely forfeit their First Amendment rights at work, their employers can impose restrictions that...

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Insurance 101 – Understanding the Nuts and Bolts of Your Health Plan

Health insurance is a complex and confusing topic; one that most people are reluctant to approach. This is especially true for trustees and administrator who must understand their own plan design, how that design differs from other available options, and be prepared to answer questions from participants and beneficiaries. In this installment, we will discuss the ins-and-outs of deductibles. Most participants understand that a deductible is the amount of money...

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Cross-Plan Offsetting: What Health & Welfare Plans Must Know

Cross-plan offsetting is becoming increasingly problematic and has become the subject of litigation. This practice involves a network provider shorting one out-of-network claim to make up for an overpayment made to the same provider on services to a different participant in a different plan! The United States Court of Appeals for the Eighth addressed this issue in Peterson v. UnitedHealth Group, Inc., 913 F.3d 769 (2019). The case was...

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Defined Benefit Plan Participants Must Have “Standing” to Sue Plan Fiduciaries

Can a participant in a defined benefit plan sue the plan’s fiduciaries under ERISA without first showing an individual financial loss or an imminent risk of such harm? The Supreme Court of the United States recently decided the question in the negative, holding a participant must have “standing” to bring suit. That means the participant must show that he or she suffered an actual injury or have...

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Abuse of Discretion – ERISA’s Standard of Review You Do Not Want to Lose

When a court reviews the decision of an ERISA plan (both health and welfare and pension plans), it must first determine the standard of review: abuse of discretion or de novo. Under an abuse of discretion standard, the court gives the plan’s sponsor (or trustees) more deference and looks at whether the decision was reasonable under the plan’s terms and available evidence. The court will also pay...

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How many Non-Bargaining Employees is Too Many?

A Multiemployer Plan under the Employee Retirement Income Security Act (“ERISA”) is a plan in which one or more employers contribute, is maintained pursuant to one or more collective bargaining agreements between one or more employee organizations and one or employer, and satisfies other requirements set forth by the United States Department of Labor. However, and despite this definition, you will often find non-bargaining employees covered under...

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Why Beneficiary Forms are Not Static

Filing out a beneficiary designation form seems like a simple task. And in all honesty, it is; you simply list the name of the person or persons you want to inherit the account, designate percentages, make sure they add up to 100%, and then sign and date the form. However, getting this message across to participants is different story. And any plan administrator or trustee of a...

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Are PCORI fees refundable?

By now, I am sure you have heard or read that the Supreme Court of the United States has recently agreed to revisit the Affordable Care Act to determine its constitutionality. If you have not, the Court agreed to hear the case of California, et al., Petitioners v. Texas, et al., No. 19-840 to determine whether the Patient Protection and Affordable Care Act...

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