Last week, the Departments of Labor, Treasury and Health and Human Services rolled back two non-enforcement policies related to the machine-readable file requirements included in the transparency in coverage (TIC) final rules: (1) deferred enforcement of the requirement that health plans post a machine-readable file listing negotiated rates and historical net prices for covered prescription drugs, and (2) an enforcement safe harbor with respect to the requirement that dollar amounts be listed in the in-network rate machine-readable file for items and services for which it is difficult to ascertain dollar amounts in advance. The guidance was released in the form of FAQs, which can be viewed here.

By way of brief background, for plan years starting on or after July 1, 2022, non-grandfathered health plans are required to post three machine-readable files (updated monthly) covering the following: (1) in-network rates (expressed as a dollar amount) for covered items and services, (2) allowed amounts for covered items and services furnished by out-of-network providers, and (3) negotiated rates and historical net prices for covered prescription drugs. 

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.

In this episode of The Proskauer Benefits Brief, Proskauer partners Ira Bogner and Adam Scoll and law clerk Tanushaproskauer benefits brief podcast Yarlagadda discuss the Department of Labor’s final ESG rules issued on November 22, 2022, and how those rules affect the consideration by ERISA fiduciaries of environmental, social, and governance or “ESG” factors when making investment decisions and exercising shareholder rights, such as voting proxies.  Although these final rules generally became effective on January 30, 2023, they are currently being challenged both in the courts and in Congress.


 Listen to the podcast

As previously discussed, the Pension Benefit Guaranty Corporation (the “PBGC”) issued final regulations in July 2022 for plans that receive special financial assistance (“SFA”) under the American Rescue Plan Act of 2021 (“ARPA”).  Among other things, the regulations imposed special withdrawal liability rules on plans that receive SFA – including a phase-in period for

The Biden Administration recently announced that the COVID-19 National Emergency will end on May 11, 2023. This means that the requirement to extend various benefit plan deadlines due to the COVID-19 pandemic will end as well.

By way of brief background, early during the pandemic, the U.S. Departments of Labor and Treasury adopted relief pursuant

The U.S. Department of Labor (the “DOL”) proposed changes to its Voluntary Fiduciary Correction Program (the “VFCP”) in November for the first time since 2006.  The most significant change is the addition of a self-correction option for delinquent deposits of participant contributions and loan repayments.  The other changes clarify and expand certain existing aspects of