On December 13, 2023, the US Court of Appeals for the Eleventh Circuit (Eleventh Circuit) held in Lapham v. Walgreen Co., that to prove Family and Medical Leave Act (FMLA) retaliation or interference claims, an employee must establish that an adverse employment decision was because of an FMLA leave request, not just motivated by the request. Plaintiff Doris Lapham worked for Walgreens in various roles and at multiple store locations for over a decade. Between 2011 and 2016, Ms. Lapham took intermittent FMLA leave to care for her disabled son. During that same period, Ms. Lapham...

On December 20, 2023, the DOL proposed rescinding a 2018 rule that created alternative criteria that could be used to determine whether a group or association of employers could establish an association health plan (AHP). The rule allows employers without a commonality of interest to form AHPs if they are in the same state or metropolitan area. Further, AHPs can form for the primary purpose of providing benefits (something that was prohibited before 2018) if they can show a “substantial business purpose,” which includes minimal proof — anything from setting business standards and...

On December 21, 2023, the IRS, DOL, and HHS (collectively, the agencies) issued a final rule related to fees established by the No Surprises Act for the federal independent dispute resolution (IDR) process under the Consolidated Appropriations Act, 2021 (CAA). The IDR process comes into play when health plans and issuers and providers, facilities and providers of air ambulance services cannot agree on an appropriate payment for out-of-network items and services. Two types of fees apply to the process: an administrative fee paid to the applicable federal agency and a fee paid to the certified...

On September 29, 2023, the IRS released the 2023 instructions for Form 8889. Employees use this form to report HSA contributions and distributions.

On November 9, 2023, the IRS issued Revenue Procedure 2023-34, providing certain cost-of-living adjustments for a wide variety of tax-related items, including health FSA contribution limits, transportation and parking benefits, qualified small employer health reimbursement arrangements (QSEHRAs), the small business tax credit, and other adjustments for tax year 2024. Those changes are outlined below.

On November 28, 2023, the DOL, HHS, and Treasury (the departments) issued guidance in the form of FAQs entitled ACA and CAA, 2021 Implementation Part 63 . One FAQ announced an update to the ACA requirement to provide certain notices in a culturally and linguistically appropriate manner. Two FAQs address if and when multiple claims for qualified federal independent dispute resolution (IDR) items and services may...

On September 29, 2023, the DOL entered into a settlement agreement with EmblemHealth Inc. (“Emblem”), a New York-based insurer and third-party administrator (TPA) of ERISA group health plans, resolving claims that Emblem breached its fiduciary duties under federal law by engaging in a practice known as “cross-plan offsetting.”

On October 27, 2023, the DOL, HHS, and IRS (the departments) proposed a rule imposing new requirements for group health plans, insurers and healthcare providers under the No Surprises Act (NSA) federal independent dispute resolution (IDR) process. According to the departments, the proposed rule is designed to streamline the current IDR process and address legal challenges to previously issued rules.

On September 25, 2023, the Congressional Research Service (CRS) published a comprehensive report on Paid Family and Medical Leave (PFML), incorporating studies and statistics published by the Bureau of Labor Statistics and other research organizations. This report:

HHS recently announced inflation-adjusted penalty amounts related to violations of Summary of Benefits and Coverage (SBC), Medicare secondary payer (MSP), and HIPAA privacy and security rule requirements. These new penalty amounts are calculated based on a cost-of-living increase of 1.07745%. The new amounts are applied to penalties assessed on or after October 6, 2023, for violations occurring on or after...