On March 18, 2024, HHS’ Office of Civil Rights (OCR) issued an updated bulletin modifying its previous guidance issued in December of 2022 on the use of third-party online tracking technologies by HIPAA-regulated entities, which include covered entities (such as group health plans) and business associates.

On February 29, 2024, in Black v. Unum Life Insurance Company of America, the Federal District Court for the Northern District of Texas granted in part the motion for summary judgment by Black (the plaintiff), determining that Unum (the defendant) failed to provide a full and fair review of plaintiff’s long-term disability claim. The court remanded the matter back to the defendant to review the claim in line with ERISA requirements.

In February 2024, the DOL issued several revised FMLA Fact Sheets to help employers better understand their compliance obligations under the FMLA. One such fact sheet is Fact Sheet #28J, which discusses how FMLA requirements are applied to airline flight crew employees, as it may be difficult for employers to easily calculate eligibility and leave entitlement for these employees.

On February 7, 2024, in Schinnerer v. Wellstar Health, Inc., the Federal District Court for the Northern District of Georgia denied the defendant’s motion for summary judgment on the issue of failing to timely provide a COBRA election notice. Although not a focus of this article, the court also addressed the defendant’s motion for summary judgment on the plaintiff’s False Claims Act retaliatory termination claim, which was granted.

The DOL's Advisory Council on Employee Welfare and Pension Benefit Plans (the Council) recently issued a report examining the scope and impact of limitations on long-term disability (LTD) benefits for mental health and substance use disorder (MH/SUD) conditions. The report highlights the lack of parity in duration limits for coverage of MH/SUD as compared to medical/surgical conditions under LTD benefit plans and makes recommendations to address this disparity.

On March 6, 2024, the IRS issued an alert (IR-2024-65) to remind taxpayers and health spending plan administrators that personal expenses for general health and wellness are not considered medical care. Therefore, these expenses are not reimbursable through health FSAs, HRAs, HSAs, and MSAs.

A recently filed lawsuit focuses on ERISA fiduciary obligations of employers in their role as group health plan sponsors, particularly the “duty of prudence” in selecting and monitoring health plan vendors. Specifically, the lawsuit involves a prescription drug plan’s benefits and management, including the plan’s usage of pharmacy benefit managers (PBMs). The lawsuit alleges that as a result of fiduciary failures, plan participants and beneficiaries were required to pay increased costs and premiums and thus harmed.

On February 9, 2024, in Watson v. EMC Corp., the US Court of Appeals for the Tenth Circuit ruled that an employer may be liable for the value of group life insurance benefits that would have been available under an insured policy absent the employer’s failure to adequately inform the employee of the plan’s conversion requirements.

On February 14, 2024, the HHS Office for Civil Rights (OCR) released two annual reports to Congress summarizing the agency's key HIPAA enforcement activities during the 2022 calendar year as required by the Health Information Technology for Economic and Clinical Health (HITECH) Act. The first report, HIPAA Privacy, Security, and Breach Notification Rule Compliance, identifies the number of complaints received, the method by which those complaints were resolved, and other OCR HIPAA compliance enforcement activities.

On February 8, 2024, HHS released a final rule modifying the Confidentiality of Substance Use Disorder (SUD) Patient Records regulations under 42 CFR Part 2 (referred to as “Part 2”). The final rule implements confidentiality rules required under the CARES Act to align certain aspects of Part 2 with HIPAA rules.