BENEFITS DIGEST

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A publication of The Inner Firm

Monday, August 24, 2026

№ 37

17 items · ~5 min read

Regulatory & Guidance (1)·Retirement Plans (4)·Health & Welfare (3)·Case Commentary (6)·Also Noteworthy (3)

The One Thing

Plan sponsors running tobacco surcharges face an emerging enforcement pattern: two federal courts in three days (Tennessee and Maryland) are scrutinizing not just whether an alternative exists, but whether plan communications actually enable employees to use it, treating deficient notice and enrollment mechanics as independent violations under the wellness nondiscrimination rules. Earlier dismissals went the opposite way, so the doctrine remains unsettled, but the recent momentum signals that "we offered an alternative" no longer closes these cases.

Regulatory & Guidance (1)

IRS/Treasury Proposed Rule: Determination of Target Normal Cost and Funding Target for Single-Employer Defined Benefit Plans
IRS 2026-08-20

IRS/Treasury proposed rule would exclude investment management fees from the plan-related expenses counted in a plan's target normal cost. It would also let sponsors adopt benefit-increasing amendments after the plan year ends, up to the tax return deadline, and still have them reduce that prior year's required contribution, potentially lowering minimum funding obligations for single-employer defined benefit plans.

Retirement Plans (4)

Health & Welfare (3)

HHS Seeks Comment on the Categories Used in Federal Vaccine Recommendations and on Shared Clinical Decision-Making
Federal Register (HHS) 2026-08-24

HHS filed a request for information asking how federal vaccine recommendations should be categorized and what role shared clinical decision-making should play. We are tracking it because non-grandfathered group health plans must cover recommended immunizations without cost sharing under the ACA preventive services mandate, and the recommendation categories are the input to that requirement. This is an RFI, not a rule, so nothing changes for plan sponsors now; the question is whether it ripens into rulemaking that touches first-dollar coverage.

How AI Is Changing the Mental Health Space
Employee Benefit News 2026-08-21

Nearly half of people with an ongoing mental health condition who use large language models say they lean on AI for mental health support, per a survey EBN reports, most commonly for anxiety and depression. For benefit leaders weighing AI tools in workforce mental health programs, the vetting question is no longer hypothetical.

Case Commentary (6)

2026 ERISA Litigation Developments
Hall Benefits Law 2026-08-21

The first half of 2026 has seen major litigation developments in cases concerning the Employee Retirement Income Security Act (ERISA), including decisions by the U.S. Supreme Court and the U.S. Courts of Appeals for the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits.

Tennessee Court Lets Tobacco-Surcharge Suit Proceed in Full Against Cracker Barrel Health Plan
Bloomberg Law 2026-08-24

A federal court in Tennessee denied Cracker Barrel's motion to dismiss in its entirety in a putative class action challenging the tobacco-user premium surcharge in its self-insured health plan, on claims that the plan failed to offer a compliant reasonable alternative standard and failed to give adequate notice of it, both required under the wellness-program nondiscrimination rules. Three days earlier, a Maryland federal judge reached a similar result in a class action over Marriott's $15-per-week tobacco surcharge, letting through a claim that plan communications named a smoking-cessation program without explaining how to enroll or whether enrolling would avoid the fee. Two courts in three days is the pattern worth watching: sponsors running a tobacco surcharge should treat “we offered an alternative” as necessary but not sufficient: notice design, placement, and reimbursement mechanics are now live issues in both cases. (The broader split runs both ways: earlier dismissals went the other way in Williams v. Target and Spencer v. Campbell Soup, so treat this as an emerging, unsettled pattern, not a rule.)

Another Employer Wins a 401(k) Forfeiture Challenge, With Leave to Replead
Bloomberg Law 2026-08-24

A federal court in Florida dismissed fiduciary-breach and prohibited-transaction claims against Acosta over its use of plan forfeitures to offset the company's own employer contributions rather than pay plan administrative expenses. The dismissal came with leave to amend, so the theory isn't dead for this plaintiff group, but it joins a run of employer-favorable rulings reading plan language that permits either use of forfeitures as foreclosing a violation, echoing an Arizona decision reaching a similar result by a different route in Northcutt v. Gen Digital earlier this month.

Veterinary Clinic Pays $500,000 Over an Undiversified 401(k) Lineup
Bloomberg Law 2026-08-24

An Illinois veterinary clinic agreed to pay $500,000 to settle a proposed class action claiming it invested nearly all of its employees' retirement savings in pharmaceutical and biotech stocks. The theory here is concentration, not fees (an unusual entry in a year dominated by recordkeeping-fee and forfeiture claims), and a reminder that a small plan with an idiosyncratic lineup carries a different risk profile than a large plan with an ordinary one.

Also Noteworthy (3)