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Russell S. Buhite
Forecast for 2023 and Beyond
By Russell S. Buhite
While it is difficult to have a crystal ball into what 2023 and 2024 has in store for legislation and the law pertaining to life, health, and disability insurance and ERISA matters, several trends stand out for discussion.
A. Health Insurance
First, in the health insurance context, we should expect to see greater emphasis in Congress towards helping consumers lower healthcare costs through greater price transparency, further attempts to lower prescription drug prices in Medicare through price negotiation with manufacturers, and continued attempts to find common ground on lowering healthcare costs generally such as happened with “surprise billing” legislation. Congress may find some common ground surrounding expanding access to mental health services. But with the GOP in charge in the House, we should expect greater scrutiny and challenges to President Biden’s Inflation Reduction Act and greater oversight of the DOL.
In addition, employers will continue to grapple with the effects of the Supreme Court’s Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022) decision as more states restrict access to abortion, and sometimes institute criminal penalties, while trying to provide benefit plan options for employees. In the wake of Dobbs, employers with health plans that cover abortion services will have to determine whether or how to provide continued access of this benefit, with some employers deciding to attempt to address the issue through medical expense reimbursement benefits while trying to avoid “aiding and abetting” liability from certain states. We also expect that litigation over Mental Health Parity Act compliance will continue apace.
B. Disability Insurance
In the ERISA disability context, Congress (through the Senate Health, Education, Labor, and Pensions committee) will continue to fight over the “Employee and Retiree Access to Justice Act” which would deem arbitration clauses, class action waivers, and discretionary clauses in employer benefit plans unenforceable under ERISA. While many states already have discretionary clause bans, and arbitration clauses have been the subject of recent litigation, several high-powered groups such as the U.S. Chamber of Commerce, the American Retirement Association, and the American Benefits Council have lined up in opposition to the Bill and it is unlikely to be passed in its current form if at all. Litigators have also seen a recent trend in courts allowing discovery not only in abuse of discretion cases, but also in those decided under the de novo standard of review, and we see this trend as likely to continue although the approaches vary substantially by federal circuit.
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Life, Health & Disability Law
FDCC ANNUAL INSIGHTS 2023