Photo of Jennifer Rigterink

Jennifer Rigterink is senior counsel in the Labor Department and a member of the Employee Benefits & Executive Compensation Group.

Jennifer focuses on a diverse array of tax and ERISA issues impacting employee benefits.  Her wide-ranging practice encompasses qualified retirement plans and non-qualified arrangements, health and welfare benefits, and fringe benefit programs.  She counsels single-employer and multiemployer clients on matters pertaining to plan administration, design and qualification, as well as regulatory, legislative and legal compliance.

In recent years, Jennifer has advised employers and plan sponsors with fiduciary and governance matters applicable to defined benefit plans and pension de-risking activities, including lump sum window programs, annuity purchases, and pension plan terminations.

Jennifer frequently counsels clients on health and welfare arrangements, with a particular focus on all matters relating to family building and reproductive health care benefits.  Her experience also includes working with employers and plan sponsors on mental health parity compliance issues.

Prior to joining Proskauer, Jennifer clerked for Judge Jacques L. Wiener, Jr., in the United States Court of Appeals for the Fifth Circuit and Judge Yvette Kane in the United States District Court for the Middle District of Pennsylvania.

On Friday, the IRS released Notice 2023-62, which addresses certain pressing implementation issues related to the SECURE 2.0 requirement that catch-up contributions for participants with FICA wages of more than $145,000 during the prior calendar year from the employer maintaining the plan must be made on a Roth basis.

In welcome news for plan sponsors, the guidance announces a two-year “administrative transition period” for implementation of this requirement, which was otherwise set to take effect on January 1, 2024.  The notice confirms that, despite a drafting quirk in the SECURE 2.0 statute which suggested that catch-up contributions would be discontinued after 2023, catch-up contributions will continue to be available.  The notice also outlines future guidance that Treasury and the IRS intend to issue on other Roth catch-up requirement topics.

Last week, the U.S. Court of Appeals for the Fifth Circuit affirmed in part and vacated in part a Texas federal district court order revoking the U.S. Food and Drug Administration (FDA) approval of the drug mifepristone, which is used as part of a two-drug regimen to induce abortion.  The Fifth Circuit vacated the district

In late July, the Departments of Labor, Treasury, and Health and Human Services released proposed regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA).  Readers of our previous blog will recall that the proposed regulations include a new three-part framework for evaluating “non-quantitative treatment limitations” (NQTLs) imposed on plan benefits.  NQTLs

On Tuesday, the Departments of Labor, Treasury, and Health and Human Services issued proposed amendments to regulations implementing the Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) and new regulations implementing the non-quantitative treatment limitation (NQTL) comparative analysis requirements under MHPAEA.  The proposed regulations introduce sweeping changes that would affect virtually all group health plans that cover mental health and substance use disorder benefits.

By way of background, MHPAEA requires that group health plans provide mental health and substance use disorder (MH/SUD) benefits in parity with medical and surgical benefits.  Evaluation of whether benefits are in parity is performed for each classification of benefits under the plan.  Although seemingly simple in concept, the nuanced nature of the parity rules has made application challenging for many plan sponsors.  Below are three key areas of focus in the proposed rules that would significantly impact group health plan administration:

A recent Sixth Circuit decision emphasizes the importance of maintaining correct benefit plan delegations to avoid tussles over the correct standard of review for benefit claims.  In this case, the Sixth Circuit concluded that no deference was owed to a claim decision made by a company’s benefits department because the plan document neither named the benefits department as the entity with discretionary authority to decide claims nor permitted the benefits committee to delegate its discretionary authority to the benefits department.  The case is Laake v. Benefits Committee, Western & Southern Financial Group Co. Flexible Benefits Plan et al., 68 F.4th 984 (6th Cir. 2023).

In the most recent sign that special COVID-19 benefit plan rules are drawing to a close, last Friday, the IRS issued Notice 2023-37, which clarifies the scope of COVID-19 testing and treatment that can be provided on a pre-deductible basis under a high deductible health plan (HDHP) without impacting a participant’s ability to contribute to a health savings account (HSA).  As a reminder, if an HDHP covers medical items and services before the participant satisfies the IRS minimum deductible (self-only or family), that coverage may disqualify the participant’s HSA contributions.  Notice 2023-37 can be downloaded here.

On Tuesday, the U.S. Court of Appeals for the Fifth Circuit approved the parties’ stipulated agreement to stay enforcement of the district court decision in Braidwood Management Inc. v. Becerra until the appeal is resolved (with a limited exception for the named plaintiffs).  As readers will recall from our prior blog, in Braidwood, a district court had enjoined enforcement of the preventive services mandate for “A” or “B” items and services recommended by the United States Preventive Services Task Force (“USPSTF”) on or after March 23, 2010.  If the district court decision stands, non-grandfathered health plans would not have to cover those particular preventive services without cost-sharing.

On Monday, the U.S. Court of Appeals for the Fifth Circuit issued an administrative stay of enforcement of the district court decision in Braidwood Management Inc. v. Becerra.  Readers of our earlier blog (found here) will remember that in Braidwood, the district court enjoined enforcement of the preventive services mandate for “A” or “B” items and services recommended by the United States Preventive Services Task Force (“USPSTF”) on or after March 23, 2010.  If the district court decision stands, this means that non-grandfathered plans would not have to cover these services without cost-sharing.  However, as a result of the Fifth Circuit stay issued on May 15, non-grandfathered health plans will continue to be subject to the mandate for these services for the time being.  All other preventive care requirements for health plans remain in place.

“Didn’t we just do this?” might be the first question asked by many health plan sponsors and administrators when gearing up to complete 2022 prescription drug reporting by June 1, 2023.  The answer to that question is both “yes” and “no.”  Yes, because group health plans were required to complete prescription drug reporting for the 2020 and 2021 reference years by January 31, 2023. No, because the agencies released revised instructions for reporting 2022 year data—meaning the reporting exercise for 2022 may be a little different than the last go-around.

The Departments of Labor, Treasury, and Health and Human Services (the “Departments”) recently released guidance for group health plans on required preventive services coverage.  The guidance was issued in response to a federal district court decision in a case called Braidwood Management, Inc. v. Becerra that enjoined enforcement of the preventive services mandate for items and services with an “A” or “B” rating from the United States Preventive Services Task Force (“USPSTF”) on or after March 23, 2010. The Departments issued this guidance to clarify the current scope of the preventive services mandate in light of the court’s decision.