We are excited to share the inaugural edition of The ERISA Edit. Each week, we'll cull what can be an overwhelming volume of information and present to you our "edit" of employee benefits and ERISA litigation news and developments. We hope The ERISA Edit will be useful to you and that you'll pass it along to others in your organization who may find it helpful. If you would like to subscribe to The ERISA Edit, please click here.

We welcome your comments and feedback on this and future editions of The ERISA Edit!

Miller & Chevalier Adds Former DOL Health Plan Enforcement Chief and Deputy Associate Solicitor

We are pleased to announce that Joanne Roskey joined the firm as a Member in its Employee Benefits and Litigation practice groups. Joanne recently served as Chief, Division of Health Investigations, in the Department of Labor (DOL) Employee Benefits Security Administration (EBSA). In that role, she oversaw EBSA's national health plan enforcement projects focused on mental health parity, emergency services including the No Surprises Act, Multiple Employee Welfare Arrangements, and health plan fees and self-dealing. She also gave strategic advice to EBSA regional offices on an array of ERISA fiduciary, prohibited transaction, and compliance matters and worked with EBSA leadership to develop health plan enforcement priorities. Prior to working at EBSA, Joanne served in the Solicitor's Office as legal counsel to EBSA in DOL's National Office as Deputy Associate Solicitor, overseeing DOL's enforcement of ERISA matters nationwide. Joanne also served in DOL's Regional Solicitor’s Office where she supervised and litigated ERISA cases involving both pension and health plans, as well as advised EBSA investigators on pending investigations. Law360 covered Joanne's arrival at the firm here. 

Secretary of Labor Marty Walsh Leaving Biden Administration

Secretary of Labor Marty Walsh is expected to depart his post to take a job as executive director of the National Hockey League Players' Association. Secretary Walsh has been a vocal advocate for mental health and substance use disorder parity, which has been a top ERISA health plan enforcement priority at DOL during his tenure. Deputy Secretary of Labor Julie Su is expected to serve as the Acting Secretary of Labor following his departure, and is in contention for the Secretary post, as she was two years ago at the beginning of the Biden presidency. We anticipate that she will continue to emphasize DOL's priorities in the mental health area. 

Texas Federal Court Vacates No Surprises Act Provider Payment Final Rule

On February 6, 2023, the District Court for the Eastern District of Texas vacated the Final Rule under the No Surprises Act (NSA) governing the arbitration process for resolving disputes between certain out-of-network providers and group health plans and health insurance issuers. Texas Medical Association v. United States Department of Health and Human Services, No. 6:22-cv-372-JDK. In deciding the legal challenge to the regulation under the Administrative Procedures Act (APA), the court held that the pertinent NSA provisions were unambiguous and that the rule conflicted with the statutory language and was not entitled to Chevron deference. As a result, arbitrators deciding payment disputes between providers and payors must consider only the statutory factors to decide out-of-network payment rates for items and services covered by the surprise billing provisions, which is the result sought by the providers and provider organizations who filed the lawsuit. The government has 30 days to appeal.

Arbitration of ERISA Claims Under Section 502(a)(2) Under Circuit Court Review

We are watching two significant ERISA arbitration cases in the federal appeals courts. On Tuesday, January 17, 2023, the Tenth Circuit Court of Appeals heard oral argument in Harrison v. Envision Management Holding, Inc. Board (Docket No. 22-1098), where the issue before the court was whether an arbitration agreement prohibiting plaintiffs from seeking "benefits or monetary relief to any Employee, Participant or Beneficiary other than the Claimant" was enforceable in a case bringing ERISA fiduciary breach claims. The district court ruled that the agreement was unenforceable on the grounds that an arbitration clause cannot waive the right to pursue an ERISA statutory remedy. The Tenth Circuit panel that heard the appeal seemed inclined to affirm the district court's decision.

The same issue is pending before the Second Circuit in Cedeno v. Argent Trust Co. (Docket No. 21-02891), where oral argument was heard on February 2, 2023. The panel hearing that appeal focused its questioning on whether a plaintiff in their individual capacity could bring a claim under ERISA section 502(a)(2) to recover remedies only for themselves, or whether such claims are inherently representative. The Seventh Circuit affirmed a denial of a motion to compel arbitration on similar facts in Smith v. Board of Directors of Triad Mfg., Inc., 13 F.4th 613 (7th Cir. 2021). Last month, the U.S. Supreme Court declined to hear a case that also sought clarification on the application of arbitration agreements in ERISA lawsuits. Cintas Corp. V. Hawkins, U.S. No. 22-226.

The information contained in this communication is not intended as legal advice or as an opinion on specific facts. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. For more information, please contact one of the senders or your existing Miller & Chevalier lawyer contact. The invitation to contact the firm and its lawyers is not to be construed as a solicitation for legal work. Any new lawyer-client relationship will be confirmed in writing.

This, and related communications, are protected by copyright laws and treaties. You may make a single copy for personal use. You may make copies for others, but not for commercial purposes. If you give a copy to anyone else, it must be in its original, unmodified form, and must include all attributions of authorship, copyright notices, and republication notices. Except as described above, it is unlawful to copy, republish, redistribute, and/or alter this presentation without prior written consent of the copyright holder.