Advocacy & Litigation

 2025 in Perspective: ERIC’s Victories for Large Employers

For the past 50 years, ERIC has been the leading voice to preserve ERISA preemption and block efforts to undermine flexibility and autonomy for plan sponsors by reducing mandates and tax and compliance burdens. We have expanded the availability of telemedicine, improved retirement and health regulations, and reconciled conflicting state and local paid sick and family leave laws. These efforts save millions of dollars for plan sponsors and working families, and give employers the needed flexibility to best support their nationwide workforce. And, when necessary, the ERIC Legal Center has stepped in to provide clarity on legal matters through amicus briefings and court challenges against both state and federal government rules.

Below is a high-level overview of key ERIC victories that shaped policy to help large employer plan sponsors provide benefits to their employees this past year.

2025 Health Policy Wins

• Permanent Extension of First-Dollar Coverage of Telehealth. Permanently allows high-deductible health plan (HDHP) members to get telehealth visits for free, even if they haven’t paid through their deductible, and still qualify for tax-advantaged health savings accounts (HSAs).
• Treatment of Direct Primary Care Service Arrangements. Allows employees with a HDHP paired with an HSA to enroll in direct primary care (DPC) arrangements, while still contributing to their HSAs – and to use HSA dollars to pay DPC service fees.
• Protecting the Employer-Sponsored Insurance (ESI) Premium Tax Exclusion.  Despite threats by some groups calling for changes to the ESI premium tax exclusion as a means for paying for other tax priorities, ERIC successfully advocated in support of retaining this tax exclusion without change. Such changes would have resulted in employees experiencing significant increases in their health care costs. 
• E-delivery Added to Priority Guidance Rulemaking Plan. IRS’ 2025-2026 Priority Guidance plan and the 2025 DOL Spring Unified Agenda included ERIC’s recommendation to allow electronic delivery of health plan communications to participants, as is the case with retirement plan communications today.
• 2026 Medicare Hospital Outpatient Hospital Rule includes Site-Neutral Payment for Drug Administration. This policy marks an important first step in lowering costs for patients and the Medicare program by ensuring the same price is paid for the same service regardless of delivery location.
• Tri-Departments Pull Proposed Rule to Require OTC Contraceptives without Copays. The Biden Administration withdrew a proposed rule that would have required coverage of certain over-the-counter (OTC) items without a prescription and without imposing cost-sharing requirements. ERIC’s opposition focused on the agencies exceeding statutory authority, outlined operational challenges if implemented, and highlighted concerns with fraud and abuse.
• Tri-Departments Released FAQs Regarding the Implementation of the No Surprises Act (NSA) and Provided Clarity on the Gag Clause Prohibition and Attestation from CAA. ERIC requested clarity on the NSA’s qualified payment amount calculations, disclosures, and notices for each party in light of the TMA III decision, and on the gag clause prohibition and attestation under the Consolidated Appropriations Act of 2021. Both resulted in additional guidance from the administration that resolved plan sponsors’ questions.
• Tri-Departments Issued FAQs on Transparency in Coverage (TiC) and Hospital Price Transparency Rules, along with RFIs. ERIC has long championed the need for improvements to implementation and enforcement of the TiC and hospital price transparency rules. The Trump Administration responded by issuing an Executive Order directing agencies to develop further transparency policies, resulting in a new proposed TiC rules.
• Transparency CAA Fixes Acknowledged. ERIC’s request regarding the application of compensation disclosure to pharmacy benefit managers (PBMs) pursuant to the Consolidated Appropriations Act of 2021 (CAA) resulted in a specific directive included in the Executive Order “Lowering Drug Prices by Once Again Putting Americans First.” In early 2026, the agencies will issue a new regulation implementing the policy ERIC requested.
• Bipartisan introduction of several bills in response to ERIC’s advocacy, including:
  • Patients Deserve Price Tags Act – Aims to improve health care price transparency, ensuring that plan sponsors and patients will have access to the actual cost of procedures, medications, and services, and extends transparency reporting requirements across a range of health care providers, plans, and pharmacy benefit managers.
  • Healthy Competition for Better Care Act – Improves fairness in contracting by prohibiting certain abusive contracting strategies used by hospitals and insurance carriers.
  • PBM Fiduciary Accountability, Integrity, and Reform (FAIR) Act – Holds PBMs accountable for their actions while performing functions on behalf of a group health plan.
• Several ERIC-Led HSA policies included in the House-passed version of the One Big Beautiful Bill Act (and teed up for further Congressional action).
  • Sec. 110204 – Allows working seniors who are eligible for Medicare Part A, but enrolled in an HDHP, to continue contributing to an HSA.
  • Sec. 110207 – Allows individuals who utilize discounted health care services at a worksite health clinic to contribute to an HSA.
  • Sec. 110208 – Allows individuals to use their HSA for physical fitness memberships and instructional physical activity.
  • Sec. 110209 – Allows both spouses to deposit their catch-up contributions into one HSA
  • Sec. 110210 – Allows employees, at the employer’s discretion, to convert FSA and HRA balances into an HSA contribution upon enrolling in an HDHP with HSA.
  • Sec. 110212 – Allows individuals to contribute to an HSA even if the individual’s spouse is enrolled in an FSA.
• Sec. 110213 – Allows individuals who make less than $75,000 annually (or $150,000 in the case of families) to contribute an additional $4,300 (or $8,550 in the case of families) each year to their HSA, indexed for inflation.
• USPSTF Topic Selected. The United States Preventive Services Task Force (USPSTF) prioritized ERIC’s recommended topic of colorectal cancer screening tools as one that should be included in their recommendation development process.

2025 Retirement Policy Wins

• Retirement Tax Incentives Defended. No changes to retirement savings tax incentives were included in the One Big Beautiful Bill Act, with ERIC successfully defending the tax preferences on which millions of Americans rely.
• Student Loan Payment Provisions Enhanced. Permanent exclusion for qualifying student loan payments made by employers was included in the One Big Beautiful Bill Act. This provision would also adjust for inflation the maximum exclusion for taxable years beginning after 2026.
• Spotlighted the Need for EBSA Transparency. ERIC championed transparency for investigations conducted by the Employee Benefits Security Administration (EBSA). ERIC testified at a House Education and the Workforce committee hearing in July and supported the EBSA Investigations Transparency Act (HR 2869) and Balance the Scales Act (HR 2958), both of which passed through the committee in September and are now primed for further action. The DOL Inspector General also announced that it was conducting an audit into the agency’s use of secret common interest agreements with the plaintiffs’ bar.
• Campaigned for ERISA Litigation Reform. ERIC strongly supports the ERISA Litigation Reform Act, legislation that would clarify the pleading standards for certain claims alleging violation of the prohibited transaction rules and delaying discovery in an ERISA case while a motion to dismiss is pending. ERIC testified at a House hearing held in December on this issue and in support of this bill.
• Paid Leave Patchwork Highlighted. ERIC has helped lead the charge for bipartisan federal action to address the patchwork of state and local paid leave mandates. This year, we successfully lobbied for the introduction of the Interstate Paid Leave Action Network (I-PLAN) Act, which would create a process and incentives for states with paid leave programs to harmonize standards and definitions for ease in administration. This bill was also included in a larger bipartisan bill, the More Paid Leave for More Americans Act.
• Compliance Assistance Focus Furthered. ERIC promoted the use of compliance assistance and other non-enforcement tools to promote compliance without burdening plans or employers. DOL announced a “renewed” opinion letter program by EBSA. DOL also released a helpful update to its Voluntary Fiduciary Correction Program, again designed to encourage self-correction in lieu of enforcement.
• Anti-cryptocurrency Guidance Rescinded. The Department of Labor rescinded a 2022 “Compliance Assistance Release” regarding cryptocurrency-related investments on 401(k) menus. New guidance also stated a return to a “neutral approach to particular investment types and strategies” plans may utilize.
• Trump Administration Poised to Address Litigation Risk Relating to 401(k) Investments. ERIC strongly supported the Department of Labor’s rescission of a 2021 “supplemental statement” discouraging the use of private equity in investments offered through a 401(k). President Trump subsequently issued an executive order relating to alternative assets highlighting the chilling effect of ERISA litigation on plan fiduciaries when making investment options available to defined contribution plan participants.
• Catch-up Regulations Issued and Improved with ERIC Recommendations. IRS and Treasury incorporated ERIC’s recommendations into long-awaited final regulations implementing the catch-up provisions of SECURE 2.0, including the provisions requiring certain catch-up contributions to be made on a Roth basis. The final regulations provide additional flexibility for plans in administering these requirements.
• Disruptive DFR Rescinded. ERIC opposed the direct final rule from the Department of Labor eliminating relief that insurers relied on to avoid the characterization of assets within their general accounts as “plan assets” for certain “Transition Policies” issued by the end of 1998. The DOL rescinded this direct final rule, which could have affected thousands of plans.

2025 State Policy Wins

• ERIC played a key role in defeating Texas legislation attempting to apply existing state PBM network regulations to ERISA self-insured plans. The bill, SB 1122, followed an opinion issued by the state Attorney General arguing that several state network restriction laws could be applied to PBMs with respect to their management of ERISA self-insured plans. ERIC opposed both the AG’s opinion and its legislative vehicle, SB 1122, working with Texas business community allies to defeat the legislation and uphold ERISA preemption.
• ERIC worked with New Mexico lawmakers to amend state legislation, HB 11, proposing the creation of a paid family and medical leave insurance program. While the legislation was not enacted this year and retains several provisions that conflict with ERIC’s advocacy principles, key improvements were made, such as a preemption provision prohibiting local governments within the state from creating their own paid leave policies.
• ERIC advocated for and helped advance Wisconsin legislation, AB 212, aimed at establishing broad licensure portability for out-of-state telehealth providers. The bill, which continued to gain support and committee approval late into 2025, generally follows the guidelines established by Uniform Law Commission model legislation that ERIC has supported since its development.
• ERIC joined coalition advocacy efforts to defeat Louisiana SB 110, legislation that sought to remove explicit ERISA preemption language from several state code sections and replace them with a more openly-constructed provision that would broadly apply state requirements to employee benefits plans to the extent not preempted by ERISA. While the proposed language change may seem minor, it would have encouraged future enforcement of state regulations on ERISA self-insured plans.
• ERIC worked directly with California Assembly Health Committee staff to develop and include key amendments to SB 41, the landmark state PBM legislation enacted this year. Importantly, ERIC conveyed the critical ERISA preemption concerns raised by the legislation, leading Committee staff to remove bill language that would have explicitly applied network restrictions to ERISA self-insured plans. ERIC will continue working to ensure that regulators similarly avoid hampering ERISA self-insured plans while implementing this law.

2025 Legal Center Wins

In 2025, the ERIC Legal Center (ELC) filed amicus briefs in 19 cases. While decisions are still pending in almost all of these cases, two of those 19 cases have been decided in favor of ERIC’s position.

• Tennessee District Court Sides with ERIC on PBM ERISA Preemption. The U.S. District Court for the Eastern District of Tennessee (in the 6^th Circuit) granted a motion for summary judgment in McKee Foods Corporation v. BFP, Inc. The court agreed with McKee Foods that ERISA preempts key provisions of Tennessee’s law requiring that employers include “any willing pharmacy” in the networks maintained by the pharmacy benefit plans employers sponsor for workers and their families. ERIC filed an amicus brief supporting McKee Foods’ motion for summary judgment.

• Second Circuit: District Court Ruling that a Bonus Incentive Plan Was an ERISA Plan Is Nonbinding. The district court had ruled that the Morgan Stanley incentive bonus plan was governed by ERISA, but that the plaintiff’s claim was subject to arbitration nonetheless. The Second Circuit did not reverse the district court’s ruling on ERISA coverage, but held that Morgan Stanley could argue before the arbitrator that the district court’s ERISA coverage holding was non-binding dicta.

Below are other cases in which ERIC and the ELC engaged and produced positive outcomes.

• Federal Government Will Not Enforce Mental Health Parity Rule. The Department of Justice (DOJ) moved to hold ERIC’s lawsuit and agreed to freeze enforcement challenging the Biden Administration’s mental health and substance use disorder parity regulations under MHPAEA and the CAA. This was spurred by the Departments informing the DOJ that they intend to reconsider the rule, including whether to issue a notice of proposed rulemaking rescinding or modifying it. During the abeyance, the Departments must update the court with status reports every 90 days. The Departments officially released a temporary non-enforcement policy.
• Supreme Court Not Taking Up Mulready v PCMA PBM ERISA Preemption Case. The Supreme Court decided not to hear Mulready, which challenged Oklahoma’s law regulating PBMs and did not provide a “writ of certiorari,” or official review without comment, for the ruling by the 10th U.S. Circuit Court of Appeals. ERIC led a coalition that filed an amicus brief supporting PCMA’s successful legal challenge at the Tenth Circuit. This is especially impactful because ERIC participated in the Call for the Views of the Solicitor General (CVSG) process, and successfully convinced DOJ to change their position – at the Circuit level, DOJ submitted an amicus arguing against ERISA preemption, while at the Supreme Court level, DOJ supported ERIC’s position that the 10^th Circuit’s ruling should not be reviewed.
• Pension Risk Transfer Litigation Dismissed. A federal judge in New York dismissed the complaint in Bueno v. General Electric (GE), alleging that GE had violated its fiduciary duties with respect to a pension risk transfer transaction.  In November 2024, ERIC filed an amicus brief in the U.S. District Court of the Northern District of New York supporting GE’s motion to dismiss the Plaintiffs’ complaint, explaining that the Plaintiffs lacked standing to sue because they failed to allege an actual injury to their legal interests stemming from the transaction, and because they failed to allege any viable claim for relief.