Table of Contents
Introduction
The Employee Retirement Income Security Act of 1974 (ERISA) [1] directly impacts the lives of most Americans, yet few are familiar with ERISA despite its governance of pensions and retirement plans, along with other employer provided fringe benefits such as health, life, and disability insurance. There are only limited exceptions to ERISA’s scope – only government-sponsored plans and most plans sponsored by religious entities are exempt. [2]
ERISA will reach a major milestone in 2024 – its fiftieth anniversary since its enactment on Labor Day of 1974. However, there is much about how the law works that remains unsettled. Courts continue to struggle with novel ERISA issues; and the U.S. Department of Labor, the federal agency tasked with administering ERISA, is constantly addressing new challenges.
As has been the case for many years, 2023 produced new ERISA regulatory initiatives and groundbreaking judicial rulings. While it is nearly impossible to fully catalog all of this past year’s developments, some of the major highlights are discussed below, along with a prediction about what 2024 may bring.
Retirement Benefits
Retirement security is a critical concern for most Americans and has understandably drawn considerable attention in ERISA litigation and on the regulatory front. Now that most Americans save for retirement through defined contribution plans [3] rather than traditional defined benefit pension plans, preventing a loss of retirement savings has been a major focus of litigation and regulatory initiatives. Several years ago, courts began seeing what became a wave of lawsuits accusing the sponsors of defined contribution plans of committing breaches of fiduciary duty owed to benefit plan participants. The lawsuits maintained that plan participants were being charged excessive management and administrative fees, resulting in erosion of retirement savings.
Excessive Fee Litigation
Another area of concern was the lack of post-employment fiduciary protections of retirement savings and identity theft leading to the loss of retirement savings has become a growing concern.
One of the most significant excessive fee cases has been Hughes v. Northwestern University,[4] where the Supreme Court overturned a dismissal of a class action lawsuit brought against Northwestern University alleging its employees were paying excessive fees for administering their § 403(b) benefits and that Northwestern also breached its fiduciary duty by failing to offer its employees investment options in lower cost funds that should have been made available due to the overall value of the assets held in its benefit plan.
Following a remand from the district court, in 2023, the U.S. Court of Appeals for the Seventh Circuit clarified the pleading requirements for excessive-fee cases and found the plaintiffs’ complaint passed muster. [5] While the court acknowledged that reasonable recordkeeping and asset management charges are appropriate, plan sponsors are obligated to monitor such expenses to insure that fees are to be commensurate with the services provided. [6] The Seventh Circuit further held that while plan sponsors do not have to “scour the market to find and offer the cheapest possible fund,” [7] they have a fiduciary obligation to replace funds charging high fees with funds that have similar performance and charge lower expenses.
At the pleading stage, plaintiffs must therefore allege “enough facts to show that a prudent fiduciary would have taken steps to reduce fees and remove some imprudent investments.” [8] The key to surviving a motion to dismiss is to draft a complaint that “plausibly allege[s] fiduciary decisions outside a range of easonableness.” [9]
Hughes marked a sea change for the Seventh Circuit, which has historically been skeptical of excessive fee cases in situations where participants can choose from a wide selection of funds and have the option to invest in lower cost funds. Both the Supreme Court and now the Seventh Circuit have come to recognize that offering a variety of investment options is not enough to insulate a plan sponsor from liability if better options are available. Another theme drawn from the Hughes ruling is that larger plans may have the economic leverage to command lower fee charges; and if so, the plans need to negotiate lower fees.
What is clear from the Seventh Circuit’s Hughes ruling is that plaintiffs must plead with specificity to identify exactly what they believe the plan did wrong. The other major takeaway is that the court of appeals offered a guide to employers and how they can avoid litigation by regularly monitoring their plans to eliminate non-performing and overpriced investments and take steps to lessen the fees paid by plan participants.
Proposed Fiduciary Regulation
In an effort to protect retirement savings, on November 3, 2023, the U.S. Department of Labor issued a new proposed rule: “Retirement Security Rule: Definition of an Investment Advice Fiduciary.” [10] This is the Department of Labor’s fourth effort since 2010 to expand the definition of who may be deemed an ERISA fiduciary to those who invest funds for retirees who roll over their retirement funds. The purpose of the proposed regulation is to protect retirees from being charged excessive fees for investing their retirement funds, and to also protect them against being steered into high commission funds or overly expensive proprietary funds. The intent of the proposed rule is to protect investors by requiring that any investment advice offered to a retiree be made in the investor’s best interest.
As with prior versions of the same rule which failed to withstand court challenges, [11] the proposed fiduciary rule has already drawn criticism from parties who maintain that the rule would restrict individual investment choices, and court challenges are anticipated if the rule goes into effect.
Cybercrime
Cybercrime is a growing threat. According to Forbes, the cost of cybercrime is expected to hit an annual cost of $10.5 trillion by 2025. [12] Cybercriminals have turned their attention to retirement savings, as illustrated by the case of Disberry v. Employee Relations Committee of the Colgate- Palmolive Co., [13] which is currently pending in federal court in the Southern District of New York. The case involves the theft of $750,000 by a fraudster who was able to penetrate a participant’s retirement account and change her password and other credentials in order to direct a distribution of the funds into an account set up by the fraudster, which was then drained of its assets. Disberry sued the plan, its recordkeeper, and the custodian bank which was holding the funds at issue for breach of fiduciary duty based on the lack of adequate fraud protection measures to prevent the loss from occurring. The recordkeeper, Alight Solutions LLC, asserted that it merely performed ministerial functions and was not a fiduciary; however, the district court disagreed and denied Alight’s motion to dismiss the lawsuit, although the custodian bank was dismissed from the case. The matter is now pending on motions for summary judgment.
What the Disberry case illustrates is that the threat of identity theft requires any party that controls access to an employee’s retirement savings to employ the highest levels of security to prevent losses from occurring. Multi-step identity verification to foil identity thieves is a necessity, along with account access controls, especially if an asset distribution is requested. The court’s ruling on the motion to dismiss identified a number of red flags indicative of fraud that were ignored; and it would be surprising if the benefit plan and its recordkeeper are able to evade liability.
Healthcare
Wit v. United Behavioral Health
Many of the most significant ERISA developments in 2023 involved healthcare issues, primarily mental health. The biggest news of the year was the issuance of yet another opinion from the Ninth Circuit in Wit v. United Behavioral Health. [14] It took three tries for the court of appeals to issue a final decision, after vacating its first two attempts.[15] The initial trial court ruling, which followed a 10-day bench trial, [16] was described by former Congressman Patrick Kennedy, now a leading mental health advocate, as the “Brown v. Board of Education for the mental health movement.” [17] The district court’s findings of fact and conclusions of law delineated numerous generally accepted standards of care used to treat mental illness and substance use disorders, emphasizing treatment aimed at making the patient better over the long term and not just to achieve temporary stabilization of acute symptoms. The court then went on to find that treatment guidelines developed by a leading health insurer to determine the appropriate level of medically necessary care were inconsistent with consensus medical treatment guidelines developed by authoritative mental health care treatment experts. In addition, the court determined that the insurer was also disregarding mandates in several states as to the level of care needed to treat patients with dual diagnoses of both an underlying mental illness and a co-existing substance use disorder. Finally, the court determined that the level of care guidelines developed by the insurer had been influenced by financial considerations rather than in the best interests of treatment the patients effectively. [18]
Despite the district court’s issuance of findings of fact based on trial testimony, the Ninth Circuit overturned broad swathes of the district court’s findings. Although the court of appeals agreed that United Behavioral Health (UBH) operated under a structural financial conflict of interest due to its dual role as the funding source for benefits, as well as the party responsible for determining eligibility to receive benefits, it gave the conflict little weight. The Ninth Circuit also upheld the district court’s determination that UBH’s guidelines conflicted with mandates in several states that guidelines developed by the American Society of Addiction Medicine needed to be utilized to evaluate the medical necessity of care prescribed when a substance use disorder was involved. However, the court of appeals decided that the lower court’s findings went too far and that the remedies it awarded went beyond what ERISA permits.
Following a remand by the Ninth Circuit, the district court requested briefing by both sides as to how each side interpreted the scope of the remand following the appellate ruling and issued a decision leaving much of the court’s initial ruling intact. [19] Expect further developments in 2024.
Tenth Circuit Developments
The U.S. Court of Appeals for the Tenth Circuit has taken the lead on addressing healthcare denials, mostly in relation to residential behavioral health treatment. In D.K. v. United Behavioral Health, [20] the court of appeals was harshly critical of United Behavioral health for terminating coverage for residential mental health treatment before the patient’s condition had stabilized and while the patient remained as significant risk of suicide. The court focused on the insurer’s failure to engage with the opinions provided by the patient’s healthcare providers and that it “effectively ‘shut its eyes’ to readily available medical information.” [21] The Tenth Circuit also found UBH was non-compliant with ERISA regulations requiring “an explanation of the basis for disagreeing with or not following the views expressed by treating doctors” [22] While the specific regulation cited by the court explicitly applies to disability benefit claims, the court found the regulations were applicable since the sentiment expressed by the disability benefit regulations were consistent with ERISA’s overall requirements.
The same court reiterated its prior conclusions in Ian C. v. UnitedHealthcare Ins. Co., [23] where the insurer was found to have ignored the patient’s co-morbid substance use disorder and terminated its approval of residential mental health treatment while the patient was still in treatment because it deemed the patient’s depression and anxiety well controlled. The court was critical of United for basing its determination on its “Mental Health Guidelines” and for failing to utilize its “Substance Abuse Guidelines” which contained additional criteria. Although the defendant maintained that the substance use disorder was not the “primary driver” for the patient’s residential treatment admission, the court rejected that argument, finding the patient’s use of drugs and alcohol constituted an independent basis as well as the precipitant for his admission into residential treatment.
Mental Health Parity
There were many developments in 2023 on the issue of mental health parity, which the Department of Labor has made a regulatory priority. In August 2023, the U.S. Department of Labor issued proposed regulations [24] to enhance parity requirements in health insurance. The aim of the proposed regulations is to limit insurers’ use of non-quantitative treatment limitations (NQTL) to decrease access to medically necessary behavioral health treatment. The comment period closed on October 2, 2023; final regulations are expected to be issued in 2024.
On the litigation front, although Congress passed the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act [25] (MHPAEA) in 2008, it was not until 2023 that a court of appeals issued a ruling clarifying the elements of a MHPAEA claim and explaining what plaintiffs need to plead in order to state a cause of action and survive a motion to dismiss. In E.W. v. Health Net Life Ins. Co., [26] the court ruled that a MHPAEA complaint must:
(1) [p]lausibly allege that the relevant group health plan is subject to MHPAEA;
(2) identify a specific treatment limitation on mental health or substance-use disorder benefits covered by the plan;
(3) identify medical or surgical care covered by the plan that is analogous to the mental health or substance-use disorder care for which the plaintiffs seek benefits; and
(4) plausibly allege a disparity between the treatment limitation on mental health or substance-use disorder benefits as compared to the limitations that defendants would apply to the medical or surgical analog. [27]
In E.W., the plaintiff accused Health Net of not utilizing equivalent criteria to determine coverage for residential behavioral health treatment and treatment in a skilled nursing facility. The insurer applied acute criteria such as “a sudden change in a person’s health status” that “require[es] prompt medical attention” for a “limited duration” [28] even though the care offered by a residential behavioral health treatment facility is typically sub-acute.
The take-away from E.W. is that the ground rules for establishing a violation of MHPAEA have now been more clearly delineated and the promise of MHPAEA will more likely be fulfilled.
Disability Insurance
Long COVID
The condition known as Long COVID has taken its toll on the American workforce. Scientific American has reported that Long COVID has “forced between two million and four million Americans out of the workforce, many of whom have yet to return.” [29] Just as 2022 ended, the first court decision addressing Long COVID and disability in an ERISA context was issued. In Abrams v. Unum Life Ins. Co. of Am., [30] a federal court in Seattle, Washington issued a ruling overturning a long-term disability insurance benefit denial in a case involving a trial attorney. The court based its findings on the consistency of the evidence presented and its finding that it was highly unlikely that the claimant, who had enjoyed a stellar legal career prior to contracting Long COVID, was not credible in reporting his symptom complaints. But the case also illustrates the difficulty faced by claimants in establishing disability due to Long COVID due to the absence of a specific laboratory marker for the presence of the condition and the difficulty claimants have in marshalling evidence to prove the validity of their symptom complaints and the legitimacy of their functional limitations.
Mental Health Parity in Disability Insurance
The Mental Health Parity and Addiction Equity Act mandates equivalent health insurance coverage for both mental health and medical/surgical treatment. However, the Parity Act applies only to health insurance. For decades, disability insurers have ubiquitously discriminated against disability benefit claimants suffering from conditions deemed psychiatric by limiting the duration of benefits payable for such conditions. In 2023, the ERISA Advisory Council undertook a study of mental health disparity in disability insurance and recommended various measures to promote parity. [31] The Council’s report, [32] which was based on the testimony of numerous witnesses representing differing views, found that concerns about potential fraud that led to the imposition of the different benefits offered for disabilities involving mental health conditions have been mitigated by advances in psychiatry and psychometric testing. Thus, the Council made the following principal recommendations:
1. Encourage Congress to adopt LTD insurance parity requirements consistent with the spirit of MHPAEA mandates for MH/SUD and physical conditions, and strongly encourage employers to consider whether exclusions and MH/SUD limitations are necessary in the current environment.
2. Commission research of LTD plans to address unknown actuarial and cost implications of removing the duration limits and to identify the underlying rationale for these limitations.
3. Urge the insurance industry to present plan sponsors with coverage options without duration limits for MH/SUD conditions.
4. Provide education to LTD plan sponsors on impact of duration limitations in LTD plans.
The day after the Council issued its recommendations, on December 13, 2023, Sun Life U.S., a leading disability insurer, endorsed the Council’s recommendations and announced that it “stand[s] ready to work with members of Congress and other partners to support appropriate legislation.” [33]
ERISA Civil Procedure
Criticism of the unique civil procedure utilized by the courts when conducting ERISA litigation has been building in recent years and continued in 2023. [34] In a concurrence to a ruling issued by the U.S. Court of Appeals for the Sixth Circuit, Tranbarger v. Lincoln Life & Ann. Co., [35] Judge John Nalbandian questioned how ERISA litigation has come to deviate from other “civil actions” despite the directive in the Federal Rules of Civil Procedure that all civil actions are to be conducted uniformly in accordance with those Rules. [36] Judge Nalbandian was especially critical of two prior Sixth Circuit rulings, Perry v. Simplicity Engineering, [37] and Wilkins v. Baptist Healthcare System, Inc., [38] which transformed ERISA cases into record review proceedings and invented a dispositive motion for deciding ERISA cases that differs from both summary judgment (Rule 56) or a bench trial (Rule 52).
Judge Nalbandian’s concurrence further pointed out that ERISA procedure is contradictory to the Supreme Court’s admonition in United States v. Tsarnaev, [39] that lower courts lack any authority to invent procedural rules which conflict with the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence. The concurrence also traced the problem with ERISA litigation to the Supreme Court’s ruling in Firestone Tire & Rubber Co. v. Bruch, [40] a seminal ERISA case which found the de novo standard of judicial review was to be the default in ERISA cases. At the same time, though, Firestone implicitly “endors[ed] a quasiadministrative- law review regime for a ‘civil action’ under § 1132” [41] by inviting lower courts to develop a federal common law to be used in adjudicating ERISA cases. Given the groundswell of growing criticism of ERISAspecific civil procedures, more developments on this issue are expected in 2024.
Another civil procedure related issue that courts have been addressing is the arbitrability of ERISA cases. The most recent ruling on the issue is Harrison v. Envision Mgmt. Holdings, Inc., [42] a case brought by participants in an Employee Stock Ownership Plan (ESOP) who alleged various breaches of fiduciary duty, which resulted in retirement savings losses. Because the ESOP plan contained a provision requiring arbitration of disputes, the defendant moved to compel arbitration, which the district court denied. The U.S. Court of Appeals for the Tenth Circuit upheld the district court’s ruling.
Despite growing acceptance of the validity of arbitration agreements, the Tenth Circuit joined other circuits [43] in ruling that mandatory arbitration of their ERISA claims abrogated the plaintiffs’ statutory rights, including the right to sue on behalf of the plan [44] to secure plan-wide relief that would benefit all participants. The arbitration clause also limited the relief that was potentially available to a narrower scope of relief than what the ERISA statute permits. Because arbitration clauses that prevent claimants from effectively vindicating their rights have been found unenforceable, the denial of the motion to compel arbitration was upheld. The Supreme Court subsequently refused to take up the case, which is likely a good indication that the Supreme Court considers mandatory arbitration of ERISA claims improper.
Conclusion
While 2023 was an exceptionally busy year for ERISA litigation and regulation of employee benefit plans, there is reason to believe that 2024 will be just as if not more eventful. In addition to ongoing litigation and potential regulatory measures regarding the issues discussed in this article, there are already new issues on the horizon. There is emerging litigation involving pharmacy benefit managers (PBM), which administer health benefit plans’ prescription drug benefits. There has been growing criticism of the role of PBMs and whether consumers benefit from their existence. On another front, employers who offer “self-insured” healthcare plans to their employees have started suing their third-party administrators for mismanaging claims and adding unnecessary fees. Since those added costs are passed on to participants in health plans in the form of higher premiums and co-insurance costs, there is a reason to anticipate further lawsuits alleging breaches of fiduciary duty against the third-party administrators for self-dealing.
Health benefit claim denials are also a perennial source of litigation. In addition to a burgeoning docket of cases involving mental health treatment, litigation relating to cutting edge medical devices, new treatment modalities, and newly developed drugs (particularly in relation to cancer treatment) is likely to be seen in the coming year. In addition, disability benefit claim denials are a steady source of litigation, and will no doubt continue to be litigated at a steady rate along with other health benefit cases, particularly ones involving mental health parity.
Finally, issues relating to retirement benefits will likely occupy the courts, Congress, and the U.S. Department of Labor in 2024. The Disberry case is unlikely to be the only major litigated case in 2024 involving cybercrime; and while employers have become more cognizant of their obligation to monitor 401(k) plan investments and fees, issues on that front continue to abound.
One of the fascinations about ERISA is that the scope of what the statute governs encompasses issues that Americans confront on a daily basis – retirement security and health and disability insurance. Congress, the Department of Labor, and the courts are struggling to keep up with new issues that affect employee benefits and arise due to advances in information technology and artificial intelligence, medical advances, and even novel viruses such as COVID-19. As a result, the one constant that can be expected in 2024 when it comes to ERISA is the likelihood that more change is on the way.
Mark DeBofsky is a shareholder at DeBofsky Law Ltd.
This article was first published by Bender’s Labor & Employment Bulletin in February 2024.
1. 29 U.S.C. § 1001 et seq.
2. 29 U.S.C. § 1003.
3. Such plans provide for tax-deferred retirement savings pursuant to 26 U.SC. §§ 401(k) and 403(b).
4. Hughes v. Northwestern University, 595 U.S. 170 (2022).
5. Hughes v. Northwestern University, 63 F.4th 615 (7th Cir. 2023); see also DeBofsky, “Hughes v. Northwestern University – The Seventh Circuit Upholds Plaintiffs’ Excessive Fee Claims, 23 Bender’s Labor & Employment Bulletin 141 (June 2023).
6. Hughes v. Northwestern University, 63 F.4th 615 (7th Cir. 2023); see also DeBofsky, “Hughes v. Northwestern University – The Seventh Circuit Upholds Plaintiffs’ Excessive Fee Claims, 23 Bender’s Labor & Employment Bulletin 141 (June 2023).
7. Hecker, 556 F.3d at 586; Loomis, 658 F.3d at 670.
8. 63 F.4th at 628.
9. 63 F.4th at 628 (citing Hughes, 142 S. Ct. at 742).
10. 88 FR 75890 (November 3, 2023); available at https://www.federalregister.gov/documents/2023/11/03/2023-23779/retirement-security-rule-definition-of-an-investmentadvice-fiduciary.
11. See Chamber of Commerce of the United States of America v. United States Department of Labor, 885 F.3d 360 (5th Cir. 2018).
12. “10.5 Trillion Reasons Why We Need a United Response to Cyber Risk,” Forbes (February 22, 2023).
13. Disberry v. Employee Relations Committee of the Colgate-Palmolive Co., 646 F.Supp.3d 531 (S.D.N.Y. 2022).
14. Wit v. United Behavioral Health, 79 F.4th 1068 (9th Cir. 2023).
15. Wit v. United Behavioral Health, 58 F.4th 1080 (9th Cir. 2023), and Wit v. United Behavioral Health, 2022 U.S. App. LEXIS 7514 (9th Cir. 2022).
16. Wit v. United Behavioral Health, 2020 U.S. Dist. LEXIS 140958 (N.D. Cal. August 6, 2020)
17. Kennedy Forum at https://www.thekennedyforum. org/blog/after-major-parity-ruling-against-top-insurerletters-to-key-stakeholders-demand-change
18. See generally DeBofsky & Moore, “The Evolution of Litigation of Health Insurance Claims Involving Mental Health,” 23 Bender’s Labor & Employment Bulletin 163 (July 2023).
19. Wit v. United Behavioral Health, 2023 U.S. Dist. LEXIS 225211 (N.D. Cal. December 18, 2023).
20. D.K. v. United Behavioral Health, 67 F.4th 1224 (10th Cir. 2023).
21. 67 F.4th at 1237. The Tenth Circuit also made the same point in David P. v. United Healthcare Ins. Co., 77 F.4th 1293, 1308 n.11 (10th Cir. 2023).
22. 29 C.F.R. § 2560.503-1(g)(1)(vii)(A)(i).
23. Ian C. v. UnitedHealthcare Ins. Co., 87 F.4th 1207 (10th Cir. 2023).
24. 88 FR 51552 (August 3, 2023).
25. 29 U.S.C. § 1185a.
26. E.W. v. Health Net Life Ins. Co., 86 F.4th 1265 (10th Cir. 2023).
27. 86 F.3d at 1283.
28. 86 F.3d at 1286.
29. “Long COVID Now Looks like a Neurological Disease, Helping Doctors to Focus Treatments,” Scientific American (Mar. 1, 2023).
30. Abrams v. Unum Life Ins. Co. of Am., 646 F. Supp.3d 1061 (W.D. Wash. 2022).
31. The author served as a member of the ERISA Advisory Council in 2023. The views expressed in this article are the author’s own views and not those of the Council, although the Council’s recommendations are quoted verbatim.
32. The USDOL will soon issue an Advisory Council Report. at https://www.dol.gov/agencies/ebsa/about-ebsa/about-us/erisa-advisory-council/reports.
33. “Sun Life U.S. Calls for Mental Health Parity in Disability Insurance,” https://www.sunlife.com/en/newsroom/news-releases/announcement/sun-life-us-callsfor-mental-health-parity-in-disability-insurance/123816.
34. See, DeBofsky, “ERISA Litigation is a Hot Mess– What Can be Done?” 23 Bender’s Labor & Employment Bulletin 231 (October 2023).
35. Tranbarger v. Lincoln Life & Ann. Co., 68 F.4th 311 (6th Cir. 2023).
36. Federal Rules of Civil Procedure, Rules 1 and 2.
37. Perry v. Simplicity Eng’g, 900 F.2d 963, 966 (6th Cir. 1990).
38. Wilkins v. Baptist Healthcare System, Inc., 150 F.3d 609 (6th Cir. 1998).
39. United States v. Tsarnaev, 142 S. Ct. 1024, 212 L. Ed. 2d 140 (2022).
40. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989).
41. 68 F.4th at 323.
42. Harrison v. Envision Mgmt. Holdings, Inc., 59 F.4th 1090 (10th Cir. 2023), cert. denied, Argent Trust Co. v. Harrison, 2023 U.S. LEXIS 4091 (U.S., October 10, 2023).
43. See, e.g., Smith v. Bd. of Directors of Triad Mfg., 13 F.4th 613 (7th Cir. 2021).
44. 29 U.S.C. § 1132(a)(2).
