BENEFITS DIGEST

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A publication of The Inner Firm

Wednesday, August 26, 2026

№ 39

19 items · ~5 min read

Retirement Plans (6)·Health & Welfare (7)·Case Commentary (4)·Also Noteworthy (2)

The One Thing

Eight federal appellate courts now agree: ERISA plan sponsors cannot use an arbitration clause to strip participants of plan-wide relief, and the workarounds sponsors tried instead (carve-outs for injunctive relief, savings clauses promising ERISA remedies, general severability language) have each failed on appeal in turn. Waiver language drafted before this consensus formed is unlikely to survive a challenge. Nixon Peabody's ERISA litigation team maps the ten circuit decisions behind the trend and flags the two structures no court has yet foreclosed: delegating arbitrability to the arbitrator, and clauses that omit the offending language altogether.

Retirement Plans (6)

Trump Accounts Gain Market Momentum: Is Your Company Ready?
Vedder · via JD Supra 2026-08-26

Trump Accounts are a new tax-favored, IRA-style savings vehicle that may be established for eligible children by an authorized individual, such as a parent, legal guardian, or grandparent, and may receive federal, family, and employer contributions.

The Most Dangerous Employee in Your 401(k) Plan Is Usually Not Who You Think
The Rosenbaum Law Firm P.C · via JD Supra 2026-08-26

When plan sponsors think about retirement plan risk, they often focus on investment committees, financial advisors, or highly compensated executives. In reality, the employee who creates the greatest risk to a retirement plan is often someone far less visible.

Does Giving Money to Your Parents Make You Less Financially Secure?
Center for Retirement Research (Boston College) 2026-08-25

Many households do not have enough saved to maintain their standard of living in retirement. This resource gap means that retirees will often have to cut back on consumption and, in some cases, rely on their adult children for financial support.

Health & Welfare (7)

White House Issues Executive Order on Childhood Vaccine Recommendations
Groom Law Group 2026-08-24

On August 10, President Trump signed an executive order directing HHS to sort childhood vaccines into three tiers of recommendation within 90 days. Groom's read for plan sponsors: the order doesn't itself revise the CDC's ACIP-based immunization schedule, so the ACA's requirement that non-grandfathered group health plans cover ACIP-recommended immunizations without cost-sharing is unchanged for now. HHS's request for comment on the new framework runs through September 20.

New Maternity Billing Codes: What Self-Funded Plans Should Watch
IFEBP · Word on Benefits 2026-08-25

For employer-sponsored group health plans, the impending change from global bundle to CPT-code billing for maternity care could bring better visibility while raising new questions about costs, administration and the participant experience.

Case Commentary (4)

What Survives in ERISA Plan Arbitration Clauses After Circuit Court Consensus?
Nixon Peabody · ERISA Litigation 2026-08-25

Eight federal appellate courts have now held that ERISA plan sponsors cannot use an arbitration clause to strip participants of plan-wide relief, with representative-capacity bars, remedy limits capping recovery at individual accounts, and class-action waivers each failing across ten circuit decisions. The carve-outs sponsors tried instead (exceptions for injunctive relief, savings clauses promising ERISA remedies, general severability language) have each been tested and rejected on appeal, and legacy waiver language drafted before this consensus formed is unlikely to survive a challenge. Nixon Peabody's ERISA litigation team identifies two structures no court has yet foreclosed (delegating arbitrability to the arbitrator and clauses that omit the restrictive language entirely) and advises sponsors to audit existing arbitration provisions now rather than wait for a challenge to test them.

When Can an ERISA Claimant Get Discovery Beyond the Administrative Record? Court Allows Targeted Conflict-of-Interest Discovery in Long COVID Disability Case
Roberts Disability Law 2026-08-25

In Mason v. New York Life Insurance Company, a magistrate judge in the Southern District of New York let a long COVID disability claimant pursue narrow discovery outside the administrative record, allowing targeted requests for the financial incentives and performance reviews of the employees who handled her claim while declining broader asks like aggregate denial-rate statistics. The takeaway: conflict-of-interest discovery fares better aimed at the specific people who decided the claim than framed as a search through the administrator's overall track record.

Also Noteworthy (2)

Inspector General Notes DOL's Lack of Controls in Information Sharing Agreements
Hall Benefits Law · via Mondaq 2026-08-25

The DOL's Office of Inspector General found "significant internal-control deficiencies" across 48 common-interest agreements that three DOL agencies entered into with private plaintiff-side law firms between January 2023 and June 2025, including no centralized tracking system, undocumented communications, and at least two instances where investigative information was shared beyond normal discovery rules. The report also flags one attorney who moved from a firm holding a DOL agreement to serve as Senior Counsel to the Labor Secretary, then returned to that same firm. Hall Benefits Law's takeaway is that any party relying on an information-sharing arrangement, regulator or plan sponsor alike, should expect this kind of documentation gap to draw scrutiny going forward.