Fourth Circuit Attempts to Clarify the Scope of ERISA’s Equitable Relief in Tragic Heart Transplant Case

By Peter Sessions - One of the thorniest issues in ERISA litigation is what ERISA § 502(a)(3) means when it says a benefit plan beneficiary can sue for “other appropriate equitable relief.” What kind of relief counts as “equitable”? And when is it “appropriate” to award that relief? Almost 50 years after ERISA was enacted, we still do not have good answers to these questions, despite numerous Supreme Court decisions. This opinion from the Fourth Circuit grapples once again with the issue, and while two of the judges think they have it figured out, a third is not so sure. Read Full Article…

VBA Article Summary

1. Overview of the Plaintiff's Grievance and District Court's Ruling: The genesis of the case is traced back to the untimely death of Kyree Devon Holman, who had been denied necessary medical benefits by his employer's insurance administrators, with allegations of procedural delays and misclassification of the urgency of his case. Plaintiff Jody Rose, Kyree's mother, sued the respective entities on grounds of violations of ERISA sections 502(a)(1)(B) and 502(a)(3) seeking both plan benefits that were due and equitable relief. Despite a magistrate judge's inclination to allow the equitable claim to proceed, the district court eventually dismissed the entire lawsuit, rejecting the claims under both the mentioned sections of ERISA based on different legal interpretations and precedents.

2. The Fourth Circuit's Analysis and Interpretation of ERISA’s Section 502(a)(1)(B) and 502(a)(3): The Fourth Circuit upheld the district court's decision on the (a)(1)(B) claim, highlighting the statute's limited scope in providing monetary relief for benefits that were never accorded, thus leaving Rose ineligible for claiming relief under this section. The court engaged in a comprehensive analysis of the (a)(3) claim, delineating the nuances between legal and equitable remedies historically and under the ERISA framework. It emphasized that the plaintiff could only seek a monetary remedy under this section if the claim targets specific funds wrongfully held by the defendant, rejecting the broader interpretation that might have allowed for 'make-whole,' loss-based monetary reliefs.

3. Divergence in Judicial Opinion and Implications for the Future: Judge Heytens voiced dissent over the majority's restrictive interpretation of the (a)(3) section, advocating for a broader approach rooted in the precedents set by the Supreme Court's decision in the Cigna Corp. v. Amara case, which the majority viewed as non-binding dicta. The divided opinions within the Fourth Circuit underscore the existing ambiguity and dissatisfaction surrounding the interpretations of ERISA section 502(a)(3), highlighting a potential need for further guidance from the Supreme Court. The case has been remanded for reassessment by the district court, albeit with an uncertain future for Rose’s pursuit of justice, with the potential of further developments and clarifications in the legal stance on ERISA claims in the pipeline.

This article continues, providing a summary of this past week’s notable ERISA decisions by subject matter and jurisdiction.

Republicans Challenge Acting Secretary of Labor’s Authority Amid Rumors of New Fiduciary Rule

By Paul Mulholland - Senator Bill Cassidy, R-Louisiana, the ranking member of the Senate Health, Education, Labor and Pensions Committee, introduced legislation Wednesday that would require Julie Su, the acting secretary of the Department of Labor, to step down as acting secretary. Read Full Article…

VBA Article Summary

1. Introduction of the Advice and Consent Act: The Advice and Consent Act seeks to limit the tenure of officials serving in an acting capacity to 210 days post their initial nomination. The act is immediately actionable upon passage, thereby requiring the acting Secretary Su to either secure Senate confirmation or resign from her position. Su, who has been serving as acting secretary for 176 days since her nomination in March, has been a focal point of controversies particularly revolving around her stint as the secretary of the California Labor and Workforce Development Agency.

2. Legal Ambiguities and Controversies: Brad Campbell, a legal expert and a partner at the Faegre Drinker law firm, points out the complexities surrounding the appointment of acting officials, particularly in the context of cabinet positions. He indicates that the existing Federal Vacancies Reform Act of 1988 does permit a 210-day service period for acting officers, although it remains unclear whether this applies to cabinet roles and when exactly this timeframe begins. Further, Campbell highlights that the legal directives governing the Department of Labor (DOL) do not clearly state the tenure limitations for an acting secretary, leading to differing opinions on the legislative hierarchy.

3. Implications for the Upcoming Fiduciary Rule: Amidst the ongoing debates, the DOL is gearing up to propose a new fiduciary rule, which is expected to be met with strong opposition, particularly from the retirement and financial advice sectors. The ongoing uncertainty surrounding Su's position compounds the potential legal challenges that the rule might face, with critics possibly questioning the legitimacy of her role as the acting secretary. Campbell foresees that the Biden administration's willingness to maintain Su in an acting role could re-initiate the movement of contentious regulations, impacting the speed and nature of the regulatory processes in the DOL.

Will the DEA, finally, set up a special registration for telehealth prescribing? Doctors and lawmakers say it's long overdue

By Heather Landi - With an ongoing shortage of mental health providers, particularly in rural areas, requiring patients to see doctors in-person to get prescriptions for controlled drugs severely restricts access to care and could increase patient harm, telehealth leaders and doctors told officials at the Drug Enforcement Administration (DEA) on Tuesday. Read Full Article…

VBA Article Summary

1. Contested Proposed Regulations on Telemedicine Prescriptions:

   DEA's Proposed Limitations - In response to the ongoing opioid epidemic, the DEA proposed rules to reinstate limitations on virtual prescribing of controlled substances, mandating in-person visits before prescriptions and refills, aiming to curb online over-prescription of controlled medications.

   Backlash from the Medical Community - The medical community voiced strong opposition to the proposed regulations, stating they would restrict access to legitimate healthcare, particularly mental health and substance use disorder treatments, and put operational and technical burdens on health systems. Medical professionals urged the DEA to reconsider and remove the in-person visit requirement, stressing the effectiveness and necessity of telemedicine, evidenced by its extensive use during the COVID-19 pandemic.

   Alternate Suggestions and Special Registration Pathway - To address concerns, several groups, including the ATA and lawmakers, proposed the creation of a "special registration" pathway to enable practitioners to prescribe controlled substances via telemedicine without prior in-person evaluations, facilitating continued access to necessary healthcare services without fostering drug diversion.

2. Historical and Ongoing Resistance to Special Registration Pathway:

   Legislative Directives - The DEA has been directed multiple times in the past through acts like the Ryan Haight Act and the SUPPORT Act to establish a special registration pathway for remote prescribing, which was reiterated in the 2023 SUPPORT for Patients and Communities Reauthorization Act.

   DEA’s Reluctance and Justifications - Despite legislative mandates, the DEA has consistently resisted establishing the special registration pathway, citing it would be "burdensome" for providers and patients and necessitate additional compliance mandates to prevent drug diversion and ensure patient safety.

   Pressure and Criticism from Stakeholders - Stakeholders, including the American Hospital Association, have criticized the DEA's reluctance, accusing them of ignoring congressional intentions and imposing unnecessary restrictions on providers and patients. Recent discussions indicate that the DEA is considering the implementation of the special registration pathway, albeit with additional data collection and monitoring requirements to prevent misuse.

3. Suggested Framework for the Special Registration Pathway:

   ATA's Recommendations - The ATA presented detailed recommendations for the establishment of a functional special registration pathway, emphasizing that it should not impose arbitrary limits on practitioners and should facilitate the identification of legitimate prescribers, without adding undue burdens.

   Support from Telepsychiatry Groups - Telepsychiatry groups proposed the creation of two registration licenses - the existing DEA Registration and a new special registration license, allowing qualified providers to prescribe certain controlled substances via telemedicine without an in-person visit or referral, thereby enhancing the accessibility of telehealth services, especially for non-profit organizations or hospitals.

   Awaited DEA Response - Although momentum for the establishment of a special registration pathway is building, with strong support from various groups and lawmakers, the DEA has yet to signal a concrete plan or timeline for its implementation, leaving the medical community and patients awaiting a resolution that balances healthcare accessibility with drug diversion control.

Doctors see potential in ChatGPT diagnoses, but questions still remain

By Andrew Leonard - As a fourth-year ophthalmology resident at Emory University School of Medicine, Riley Lyons’ biggest responsibilities include triage: When a patient comes in with an eye-related complaint, Lyons must make an immediate assessment of its urgency. He often finds patients have already turned to “Dr. Google.” Online, Lyons said, they are likely to find that “any number of terrible things could be going on based on the symptoms that they’re experiencing.” Read Full Article…

VBA Article Summary

1. Promising Results in Chatbot Accuracy: A recent study conducted by Lyons and his team at Emory, published in medRxiv, highlighted the proficiency of ChatGPT in diagnosing eye-related complaints, showcasing notable accuracy when compared to human doctors and vastly outperforming symptom checkers like those available on WebMD. The upgraded version of ChatGPT, launched in November 2022, has shown marked improvement in providing accurate information, with no "grossly inaccurate" statements made during the study.

2. Integration Challenges and Regulatory Concerns: Despite the encouraging results, the incorporation of AI chatbots like ChatGPT in the healthcare sector poses several challenges. Many professionals argue for a regulatory framework akin to the FDA's approval process for new drugs to ensure the safety, privacy, and efficacy of these tools. Critics emphasize the potential for misuse, including possible exploitation and commercialization of data by steering patients towards specific drugs or services, raising concerns about bias, liability, and transparency.

3. Emerging Trends and Future Prospects: The healthcare industry is witnessing a surge in the utilization of generative AI in various sectors, including radiology and medical records management. AI chatbots have been noted not only for their accuracy but also for their empathetic responses, with some even exploring their usage in mental health therapy. However, with the technology rapidly proliferating, experts call for an urgent stance from regulators to conduct rigorous testing and evaluations based on patient outcomes to steer the development and integration of AI chatbots in a direction that ensures safety and effectiveness, ultimately benefiting both patients and healthcare professionals.

EEOC sues Walmart, charges test bias against disabled

By Judy Greenwald - The U.S. Equal Employment Opportunity Commission is suing Walmart Inc. in a putative class action for allegedly discriminating against disabled employees by subjecting them to unlawful testing. The company said in a statement that the program that is the lawsuit’s focus was terminated several years ago, and that it plans to defend itself in the litigation. Read Full Article…

VBA Article Summary

1. Lawsuit Allegations Against Walmart's PGA Program: The Equal Employment Opportunity Commission (EEOC) has filed a lawsuit against Walmart, alleging that the company's Pathways Graduation Assessment (PGA) program, introduced in 2015, discriminated against individuals with disabilities. The lawsuit contends that the PGA program was not related to job requirements and business necessities, and that Walmart failed to provide reasonable accommodations for individuals taking the test. Consequently, several employees with disabilities who were performing satisfactorily in their roles were terminated upon failing the assessment. The EEOC is seeking compensatory and punitive damages, back pay, and compensation for lost benefits, along with an injunction to prevent future discrimination.

2. The Impact on Employees with Disabilities: According to the lawsuit, the PGA program screened out or attempted to screen out employees with disabilities, subjecting them to termination if they failed the assessment. Two employees from Arkansas, one who was deaf and another with intellectual and speech/language disabilities, were reportedly terminated after failing the test three times, despite having performed their jobs satisfactorily. The EEOC emphasizes that employees with disabilities who perform their jobs successfully should be commended instead of being terminated.

3. Walmart's Defense and Previous Commitment to Inclusivity: In response to the lawsuit, Walmart has defended its stance by highlighting that the company has been a leading employer for individuals with disabilities for many years. They mentioned that the Pathways program was designed keeping in mind the needs of all associates and included provisions for accommodation options through multiple audio and visual notifications during the training and assessment. Moreover, Walmart noted that the PGA program has already been discontinued and expressed their plan to defend the company against the allegations made in the lawsuit.

Advancing Team-Based Primary Care: The Importance and Challenges in 2023

By Lisa Rotenstein, MD, MBA, MSc and Richard Gitomer, MD, MBA, MSc - In this issue of TheAmerican Journal of Accountable Care, Daugherty et al1 describe a large-scale initiative to transform primary care practices across the Allegheny Health Network. Transformation efforts were implemented in waves, with 10 to 12 practices launching the process every 6 to 9 months. Practices went through 3 stages of transformation, including optimizing staffing, initiating continuous process improvement, and integrating new clinical team members to enhance primary care delivery. Several key lessons about development of effective value-based care delivery emerge from this account. Read Full Article…

VBA Article Summary

1. Redefining Primary Care Teams for Modern Healthcare Delivery: The Evolving Role of Primary Care - Acknowledge the substantial changes in the practice of primary care where the role of primary care physicians (PCPs) has greatly expanded beyond direct face-to-face interactions, delving more into ambulatory quality, chronic disease management, and coordination of care for high-risk patients. Recognize the growing involvement with electronic health record systems, which, despite being associated with increased administrative work and potential emotional exhaustion, have been linked to better care quality in certain contexts.
   Increased Dependence on Team-Based Care - Emphasize that the present dynamics of primary care delivery render the traditional staffing ratios inadequate. Highlight the scope for expanding team-based care in primary care, which can lead to improved patient experience and reduced costs.

2. Implementing Enhanced Care Teams:
   Successful Augmentation of Care Teams - Discuss the successful case study described in the article where existing care teams were augmented with advanced practice providers, nurses, and health coaches, thereby aiding the PCPs in various aspects like urgent visits, patient queries, and health goal facilitation. Mention the potential for future research in evaluating the impact of such team enhancements on various parameters including physician time expenditure and experience.
   Financial and Logistical Challenges - Recognize the financial and logistical challenges in scaling up such team-based structures. Stress the necessity of guided transformation through optimization of staffing, continuous improvement processes, and new team member integration, albeit requiring substantial investments.

3. Leadership and Financial Frameworks for Sustainable Transformation:
   Leadership Engagement and Incentive Development - Highlight the importance of leadership buy-in for a successful transformation where incentives are developed to encourage participation and enthusiasm from diverse team members. Mention the potential conflicting demands that large healthcare organizations face and the need for a commitment from the top management to foster transformation.

   Financial Sustainability Through Value-Based Care - Discuss the financial implications of enhancing primary care teams, where traditional fee-for-service (FFS) environments might not offer sufficient revenues to support enhanced staffing. Highlight the positive return on investment achieved through value-based contracts in the case study, and the potential for such financial frameworks to facilitate sustainable investments in primary care transformation.

   The Roadmap for Future Transformation - Emphasize the relevance of team-based care in 2023 and the guidance this study offers to primary care leaders seeking transformation amidst the current financial constraints. Point towards the necessity of a well-planned strategy encompassing leadership support, infrastructure, and a conducive financial framework, becoming increasingly feasible with the expansion of value-based care.

Break with tradition: Considering nontraditional benefits

By Nick Rockwell - We all have our traditions, like parades, picnics and fireworks. Or the family recipe that appears at every holiday meal, even if no one really likes it. In our business, practices and products become traditional because they work well. But sometimes, we can bring more value by taking a nontraditional approach. Here are four reasons you should consider nontraditional benefits. Read Full Article…

VBA Article Summary

1. Rising Trends in Nontraditional Product Adoption by Competitors: A significant surge in the adoption of nontraditional products has been witnessed, with 75% of brokers selling them regularly, a notable increase from 60% the previous year, as per the "Brokers Back in Business" Spotlight report. These include top-selling ID theft protection plans, followed by discount health programs, financial wellness, legal plans, wellness initiatives, and pet insurance.

2. Growing Employee Readiness to Invest in Voluntary Benefits: Although currently underutilized, with less than 10% of U.S employees owning voluntary ID theft, pet, or legal insurance, there exists a substantial interest in these products, surpassing that of many traditional voluntary benefits, as highlighted in the "Market Vision—The Employee Viewpoint" report. A considerable fraction, about one-third of employees who don't have coverage, show keen interest, indicating a willing market.

3. Untapped Sales Potential in Offering Nontraditional Benefits: Despite the limited number of employers offering nontraditional benefits voluntarily, there is a significant interest in expanding these offerings, creating a high sales potential, as revealed by the "MarketVision—The Employer Viewpoint" report. Remarkably, nontraditional products dominate the preference list, occupying four of the top five positions when comparing the interest between employers who don't offer a product and those considering to introduce it.

4. Broadening Accessibility through Carriers' Initiatives: Carriers are gearing up to include more of these benefits in their portfolios shortly, as indicated in the “Voluntary Product Trends" Frontline report. Financial wellness programs and student loan repayment schemes are likely to be introduced first, followed by mental health benefits, legal plans, pet insurance, and pharmacy discounts, broadening the spectrum of accessible nontraditional benefits.

LIMRA: Young people want life insurance, but aren’t buying it

By John Hilton - The concept of life insurance sells itself and always has. Few Americans argue against the idea of setting aside a few dollars for protection against the financial consequences of an untimely death. Converting that popular concept into a life insurance sale is where the difficulty comes in. It’s a difficulty many producers are currently having with younger Americans. Read Full Article…

VBA Article Summary

1. Shift in Preference towards Online Insurance Purchase: New LIMRA research unveils a significant shift in the purchasing preferences of Gen Z adults and millennials, who now show a higher inclination towards buying life insurance online, marking the first time online purchasing has overtaken the preference for consulting with financial professionals. Despite this shift, the role of financial professionals remains integral in the purchasing process, as younger adults anticipate requiring expert advice to make informed decisions, given the critical implications of life insurance on the financial security of their loved ones. Industry stakeholders must therefore recalibrate their strategies to offer a balanced approach that integrates digital convenience with expert human advice.

2. Increasing Financial Concerns among Younger Generations: The study highlights the amplified financial concerns prevalent among Gen Zers and millennials, who are navigating significant financial stress, influenced by experiences such as the financial crisis and the COVID-19 pandemic. This demographic, already juggling less wealth accumulation compared to older generations and pessimistic outlooks on homeownership prospects, is facing heightened stress levels concerning their finances and job security, further exacerbated by the negative news propagated through social media platforms. These overarching concerns spotlight the urgency for the insurance industry to develop targeted strategies that address the unique financial dynamics and anxieties faced by this group.

3. Strategies to Address the Growing Life Insurance Need Gap: Despite the record-breaking life insurance sales in recent years, a growing gap is observed in the actual ownership of life insurance among young adults who acknowledge the need for it. To bridge this gap, industry professionals must adapt to the distinct characteristics of younger adults, who are digitally adept and prioritize online experiences characterized by personalization, speed, and ease of access. Furthermore, addressing the prevalent misconception regarding the high cost of life insurance, and providing clarity on the types and amount of coverage necessary, could potentially catalyze more informed decisions. Leveraging the extensive usage of various social media platforms by this group, industry professionals must enhance their online presence to engage effectively with potential young adult clients, fostering a seamless blend of online information dissemination with personalized advisory services.

Why solving family mental health is a business imperative

By Dr. Shakira Espada-Campos - In the past few years, the COVID-19 pandemic and financial pressures affecting many have tested our collective resilience, impacting the health and mental wellbeing of our employees and their families. According to a report from the Kaiser Family Foundation, one-third of adults in the U.S. are living with symptoms of depression and/or anxiety, and 90% of the public believes the nation is in a mental health crisis. Read Full Article… 

VBA Article Summary

1. Impact of Family Mental Health on the Workplace: A strong link exists between an employee’s mental health and the psychological well-being of their family members. Research from MDLIVE’s "Family Matters: Report on the State of Family Mental Health in the U.S." reveals that the emotional well-being of a family is directly connected with its members’ mental health status. Only one in three respondents believed their family achieved a very good level of mental health. Economic stresses, worries about job markets, inflation, and general financial stability were top concerns for both adults and teens, further exacerbating workplace stress for breadwinners. The COVID-19 pandemic, especially its impact on older Gen Z members who faced social and academic disruptions, highlighted the pressing need for addressing the mental health of the entire family for ensuring overall employee productivity.

2. Economic Implications of Mental Well-being: Enhanced mental health of employees and their families can greatly benefit a company's bottom line. The annual cost of lost productivity due to poor mental health is significant. Gallup's "State of the Global Workplace: 2023 Report" notes that engaged workers result in 23% higher profits for businesses. In contrast, disengaged employees cost the global economy around $8.8 trillion in lost productivity, equating to 9% of the global GDP. Mental Health America's survey findings suggest that workplace stress and its effects on overall mental health can lead to unhealthy coping mechanisms, such as substance abuse. Such issues come with hefty costs, estimated at around $190 billion annually due to workplace burnout.

3. A Holistic Approach to Addressing Mental Health: There's a clear need for a comprehensive strategy that caters to the mental well-being of the entire family. Access to such resources can help alleviate stress and improve work focus and quality. It's essential to recognize that mental health benefit needs can vary among employees. This variance means that the solutions offered should be diverse, flexible, and adaptable to different needs. Suggestions to improve family mental health include fostering a stigma-free work environment, educating about virtual behavioral health services, offering flex-time to employees for attending therapy with family members, and introducing non-traditional benefits like a one-hour daily pause or paid mental health days off. Recognizing the crucial relationship between family mental health and workplace performance can lead to a more resilient and productive workforce.