Employee Benefits Regulations Potentially Impacted by the Biden Administration?ÇÖs Regulatory Freeze

On January 20, 2021, the Biden Administration issued a memorandum (the Memo) announcing a regulatory freeze on regulations that have not taken effect as of the date of the Memo. Specifically, the Memo recommends postponing the effective date of any regulation that has been issued, but has not taken effect, for 60 days from the date of the Memo. The Memo further directs that regulations not yet published in the Federal Register be immediately withdrawn for review. Listed below are some of the proposed and final regulations related to employee benefits that may be subject to withdrawal or postponement under the Memo:

• Prohibited Transaction Exemption 2020-02 Improving Investment Advice for Workers & Retirees. Final Rule.
• Application of the Employer Shared Responsibility Provisions and Certain Nondiscrimination Rules to Health Reimbursement Arrangements and Other Account-Based Group Health Plans Integrated with Individual Health Insurance Coverage or Medicare. Final Rule.
• Pension Benefit Statements-Lifetime Income Illustrations. Interim Final Rule.
• Independent Contractor Status Under the Fair Labor Standards Act. Final Rule.
• Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2022; Updates to State Innovation Waiver (Section 1332 Waiver) Implementing Regulations. Final Rule.
• Fraud and Abuse; Removal of Safe Harbor Protection for Rebates Involving Prescription Pharmaceuticals and Creation of New Safe Harbor Protection for Certain Point-of-Sale Reductions in Price on Prescription Pharmaceuticals and Certain Pharmacy Benefit Manager Service Fees. Final Rule.
• Medicaid Program; Patient Protection and Affordable Care Act; Reducing Provider and Patient Burden by Improving Prior Authorization Processes, and Promoting Patients Electronic Access to Health Information for Medicaid Managed Care Plans, State Medicaid Agencies, CHIP Agencies and CHIP Managed Care Entities, and Issuers of Qualified Health Plans on the Federally Facilitated Exchanges; Health Information Technology Standards and Implementation Specifications. Final Rule.
• Medicare Program; Secure Electronic Prior Authorization for Medicare Part D. Final Rule.
• Medicare Program; Medicare Coverage of Innovative Technology (MCIT) and Definition of Reasonable and Necessary Final Rule.
• Proposed Modifications to the HIPAA Privacy Rule to Support, and Remove Barriers to, Coordinated Care and Individual Engagement. Proposed Rule.
• Proposed Amendments to Regulations Under the Americans With Disabilities Act (which clarifies the incentives an employer could offer under a wellness program that asks for employees health information). Proposed Rule.
• Proposed Amendments to Regulations Under the Genetic Information Nondiscrimination Act of 2008 (which clarifies the incentives an employer could offer under a wellness program that asks for the current or past health information of an employee's). Proposed Rule.
• Mandatory 60-Day Postponement of Certain Tax-Related Deadlines by Reason of a Federally Declared Disaster. Proposed Rule.

The Biden Administration also released a fact sheet listing a number of specific regulations that the heads of the relevant agencies will review. On the list is the DOL rule Financial Factors in Selecting Plan Investments a final rule requiring plan fiduciaries to select investments based solely on financial considerations. The rule falls outside the scope of the Memo because it took effect on January 12, 2021. However, regulations approved during the final days of the Trump Administration that fall outside the scope of the Memo may still be subject to revocation under the Congressional Review Act (CRA). The CRA allows an incoming Congress to review and nullify rules issued during the last 60 days of the prior legislative session by a simple majority in both chambers. Thus, employers should continue to monitor the ESG rule, and other regulations passed during the CRA period, for potential new developments. The Memo is available here. The fact sheet is available here.