Publications

HHS Final Rule Amends HIPAA Privacy Rules Post-Dobbs

ELIZABETH LOH, June 27, 2024 The Department of Health and Human Services (HHS) has issued a final rule which amends the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rules (the “Final Rule”). HHS issued the Final Rule in the wake of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.  HHS explains that the Final Rule is meant to support President Biden’s Executive Orders on protecting access to reproductive health care — in particular, by protecting information related to reproductive health care and bolstering patient-provider confidentiality. The new Final Rule will require certain compliance actions by covered entities (e.g., health care providers and group health plans) and their business associates. Prohibitions on Certain Uses and Disclosures of PHI The HIPAA Privacy Rules generally provide that covered entities are prohibited from using or disclosing protected health information (PHI), except as permitted by the HIPAA Privacy Rules. The newly

Read More »

The Retirement Security Rule: Designed for Permanency?

YATINDRA PANDYA and ROBERT GOWER, June 27, 2024 Introduction On April 25, 2024 the Department of Labor (DOL) issued the final Retirement Security Rule (the “Final Rule”), providing a new regulatory definition of an “investment advice fiduciary” under the Employment Retirement Income Security Act of 1974 (ERISA). The Final Rule looks to end the DOL’s decades-long effort to replace the 1975 definition of who may be considered a fiduciary when providing investment advice for a fee or other compensation. In 2010, a proposed rule was withdrawn by the DOL. A 2016 final rule (the “2016 fiduciary rule”) was vacated by the Fifth Circuit Court of Appeals in 2018, leaving as the rule a five-part regulatory test issued a year after enactment of ERISA (the “1975 regulation”). For discussion on background leading up to the Final Rule, see our November 30, 2023 article, “Retirement Security Rule: Definition of an Investment Advice

Read More »

New Challenges to Pension Risk Transfers

STEPHANIE PLATENKAMP, April 30 2024 Plan sponsors have found it increasingly difficult to predict and manage the cost of their defined benefit pension plans (“DB plans”) due to fluc­tuating interest rates, investment returns, increased costs, and participant longevity. As a result, pension de-risking has become a common way for plan sponsors to manage risk and control costs associated with their DB plans. Pension de-risking transactions take several forms, including paying lump sums to participants in a limited window and restructuring the underlying plan investments to reduce risk. Another strategy for de-risking, which has become increasingly popular, involves transferring plan liabilities to an insurance company. In these transactions, plan sponsors purchase annuity contracts from third-party insurers who then assume responsibility for future benefit payments to participants and beneficiaries covered by the transaction. We refer to these transactions as pension risk transfers.  Three class action complaints filed in March reveal that the

Read More »

Ninth Circuit Court of Appeals Clarifies Pleading Standards Applicable to Suits for Violations of the Mental Health Parity and Addiction Equity Act

STEPHANIE LAO, April 30 2024 In Ryan S. v. UnitedHealth Group, Inc., 2024 WL 1561668 (9th Cir. Apr. 11, 2024), the Ninth Circuit Court of Appeals recently overturned a California district court’s dismissal of a lawsuit brought on behalf of a putative class of group health plan participants against UnitedHealth Group, Inc. and its subsidiaries (collectively, “UHC”) alleging violations of the Mental Health Parity and Addiction Equity Act (MHPAEA) and the Employee Retirement Income Security Act of 1974 (ERISA). The Ninth Circuit held that a plaintiff may avoid dismissal by alleging the existence of a procedure used in assessing mental health and substance use disorder (MH/SUD) benefit claims that is more restrictive than those used in assessing medical/surgical claims under the same classification, as long as the allegation is adequately pled. Ryan S. provides valuable insight into the pleading standard plaintiffs must meet when alleging violations of MHPAEA’s mental health

Read More »

The Cost of Drugs: Johnson & Johnson Lawsuit Could Signal the Opening of a New Area of ERISA Class Action Litigation Against Health Plan Fiduciaries

MARY POWELL, DYLAN RUDOLPH and SARAH KANTER, March 21 2024 Over the past two decades, fiduciaries of health plans governed by the Employee Retire­ment Income Security Act of 1974 (ERISA) have largely avoided involvement in the increasingly active area of “excessive fee” fiduciary breach litigation, which has mainly targeted fiduciaries of defined contribution retirement plans. That may have changed when a class action lawsuit was filed recently against Johnson & Johnson (“J&J”) and the fiduciaries of two J&J-sponsored health plans: Lewandowski v. Johnson and Johnson, et al., Case No. 3:24-cv-00671-ZNQ-RLS (D. N.J., Feb. 5, 2024). If successful, this case could signal the opening of a new area of ERISA class action litigation aimed at health plan fiduciaries, who have largely stayed under the radar of the ERISA plaintiffs’ bar up to this point. In this article, we will address the claims and allegations in the J&J case and the impact

Read More »

A Closer Look at Arbitration Provisions in ERISA Breach of Fiduciary Duty Claims

BRIAN D. MURRAY and ANGEL L. GARRETT, December 19 2023 As plan sponsors increasingly look to arbitration provisions to avoid costly class action litigation, courts across the nation have weighed in on whether plan-wide claims for breach of fiduciary duty under ERISA § 502(a)(2) can be subject to mandatory arbitration.  ERISA § 502(a)(2) provides that a civil action for breach of fiduciary duty may be brought for the benefit of the plan as a whole. While every circuit court to consider the issue — the Second, Third, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits — has recognized that claims under ERISA are generally arbitrable, there is a split in the courts on whether plan-wide claims for breach of fiduciary duty under ERISA § 502(a)(2) can be forced into arbitration.  In determining whether to enforce arbitration clauses, courts generally examine one or both of the following questions: First, did the

Read More »
  • Search

  • Recent Posts

  • Archives

  • Practice Areas

  • Office Locations

    SAN FRANCISCO


    135 Main Street, 9th Floor

    San Francisco, CA 94105-1815

    LOS ANGELES


    15760 Ventura Boulevard, Suite 910

    Los Angeles, CA 91436-2964

    PORTLAND

    
329 NE Couch Street, Suite 200

    Portland, OR 97232-1332

    Awards & Recognition