Plans, Perks & Pay | Employee Benefits & Executive Compensation Blog

Retirement accounts are a seemingly simple and effective way to protect assets from future creditors, but the subtle nuances of what is protected under Missouri law and what is protected in bankruptcy can be complex. In the July/August 2019 edition of the Journal of the Missouri Bar, attorneys Keith Herman and Jeffrey Herman analyze how you can use retirement accounts for asset protection and the potential loopholes to avoid.

A U.S. Court of Appeals determined that arbitration on an individual basis is the proper forum for a participant’s claim that Charles Schwab breached its fiduciary duties and engaged in prohibited transaction under the Employee Retirement Income Security Act of 1974 (ERISA) by holding proprietary funds in its 401(k) plan.

Certain treatments for chronic conditions can now be covered by high deductible health plans (HDHPs) as preventive care before the deductible is met. Pursuant to an executive order, a new IRS notice will allow individuals with certain conditions, such as asthma or diabetes, to obtain coverage for treatments and medications, such as inhalers and insulin, without first meeting their high deductible.

On Friday, June 28, 2019, the U.S. Supreme Court agreed to hear a case involving a hotly debated ERISA topic: standing to bring breach of fiduciary duty claims in defined benefit plans. The court will review Thole v. U.S. Bank, Nat’l Ass’n, 873 F.3d 617, 628 (8th Cir. 2017), which the Eighth Circuit decided on statutory standing grounds. In accepting the case, the Supreme Court also certified the additional issue of whether the defined benefit plan participants have demonstrated Article III standing.

After more than two years since the U.S. Supreme Court issued its last decision^* in a case involving the Employee Retirement Income Security Act (ERISA), the court’s next term looks to be flush with ERISA issues. On June 10, 2019, the Supreme Court granted certiorari in a Ninth Circuit case addressing the “actual knowledge” standard in the statute of limitations for fiduciary breaches. Intel Corp. Investment Policy Committee, v. Sulyma, No. 18-1116.  The Supreme Court has granted certiorari in two ERISA cases in as many weeks, and it seems likely the court may grant review in at least one other case. Below is a summary of the cases that are or may be in front of the Supreme Court in the coming term.

On May 24, 2019, the U.S. Department of Health & Human Services (HHS) announced that it is issuing proposed revised regulations under Section 1557 of the Affordable Care Act that remove the redefinition of “sex” and certain regulatory burdens, including language taglines. The changes substantially roll back the original Obama-era regulations.

The Internal Revenue Service has updated the Employee Plans Compliance Resolution System (EPCRS) to allow for the self-correction of more failures. EPCRS is a program that allows plan sponsors to correct errors involving qualified plans (such as 401(k) plans, profit sharing plans, defined benefit pension plans, etc.) and certain other types of plans that, if left uncorrected, could jeopardize the tax-favored status of the plan. Revenue Procedure 2019-19 expands the self-correction program to include correction of certain loan failures and more corrections via retroactive amendment.

Recently, the IRS has been issuing 226J letters for the 2016 tax year. IRS Letter 226J is the penalty letter sent to employers who did not comply with the employer mandate under the Patient Protection and Affordable Care Act (ACA) in their offers of health coverage to employees. Frequently these penalties can be in the hundreds of thousands to millions of dollars. However, with the advice of counsel, you may be able to reduce, if not eliminate, the penalties, and changes can be made to avoid penalties in future years. It is important to note that while the individual mandate has been eliminated effective Jan. 1, 2019, by the current administration, the employer mandate still applies.

The battle over health benefits rages on. In the latest salvo, a group of states scored a major court victory against the Trump administration’s new “Association Health Plan” Final Rule, which was finalized in 2018. While this decision will have major ramifications, it is important to remember that association health plans may still be established under old rules that existed long before the final rule.

The case is styled New York v. United States Dep’t of Labor, No. CV 18-1747 (JDB), 2019 WL 1410370 (D.D.C. Mar. 28, 2019).

In October 2018, the IRS updated the Employee Compliance Plans Resolution System (EPCRS) by issuing Rev. Proc. 2018-52. EPCRS is a program that allows plan sponsors to correct errors involving qualified plans (such as 401(k) plans, profit sharing plans, defined benefit pension plans, etc.) and certain other types of plans that, if left uncorrected, could jeopardize the tax-favored status of the plan. Among other changes to EPCRS, Rev. Proc. 2018-52 provides that, beginning Jan. 1, 2019, Voluntary Correction Program (VCP) submissions may be made electronically via www.pay.gov. Beginning April 1, 2019, the electronic filing requirement becomes mandatory.