Daniel Aronowitz Confirmed as EBSA Assistant Secretary

On September 18, 2025, Daniel Aronowitz was confirmed by the Senate to serve as the Assistant Secretary of Labor overseeing the Employee Benefits Security Administration (EBSA). He was approved 51-47 as part of a block vote of 48 nominees. We wrote about Assistant Secretary Aronowitz's background and nomination here and here. He will likely draw from his experience as president of fiduciary insurance underwriting company Encore Fiduciary in this new role. He testified before the Senate Health, Education, Labor, and Pensions (HELP) Committee in June where he vowed to "end the era of regulation by litigation by providing clear and effective rules for America's employee benefit system" and "restore discretion to plan fiduciaries as Congress intended in the ERISA statute, so that fiduciaries, not the government or plaintiff lawyers, decide what is best for plan participants." 

Janet Dhillon, who served as Acting Assistant Secretary of EBSA while Mr. Aronowitz's nomination was pending, is still awaiting confirmation as Director of the Pension Benefit Guaranty Corporation (PBGC). 

AHIP Issues Statement on Health Plan Vaccine Coverage

On September 16, 2025, AHIP (formerly known as America's Health Insurance Plans), the largest health insurance association in the U.S., issued a statement on health plan vaccine coverage just days before the newly appointed members of the Advisory Committee on Immunizations Practices (ACIP) met September 18 and 19 to consider changes to its vaccine recommendations. ACIP's recommendations form part of the group of healthcare items and services that must be covered without cost-sharing under the Affordable Care Act (ACA) preventive services mandate.

According to AHIP's statement: 

Health plans will continue to cover all ACIP-recommended immunizations that were recommended as of September 1, 2025, including updated formulations of the COVID-19 and influenza vaccines, with no cost-sharing for patients through the end of 2026.

The statement also expresses a commitment to maintaining and ensuring affordable access to vaccines and to coverage decisions for immunizations grounded in scientific and clinical evidence. The statement does not list the "health plans" referenced in the statement, but AHIP's membership includes more than 100 health plans and insurers across the U.S., covering over 200 million Americans. 

During its meeting, ACIP changed its COVID-19 vaccine guidance, opting to replace its universal recommendation with one based on individual decision making for persons under 65. The committee also withdrew and replaced its recommendation with respect to the measles, mumps, rubella, varicella (MMRV) vaccine. ACIP's recommendations must be approved by the director of the Centers for Disease Control and Prevention (CDC) and are available on the CDC website.

Tri-Agencies Issue No Surprises Act Fact Sheet Addressing IDR System Statistics

The Departments of Labor (DOL), Health and Human Services (HHS), and the Treasury (collectively, the Departments) recently issued a fact sheet titled "Clearing the Independent Dispute Resolution (IDR) Backlog," which lists an assortment of statistics relating to the number of IDR requests in the system and the timeliness of resolution of disputes by IDR entities. The fact sheet reports that as of July 2025, 363,099 disputes were outstanding, 34 percent of which were older than 30 days. In comparison, 69 percent of open disputes were older than 30 days in January 2025. According to the Departments, in July 2024, 213,585 new disputes were initiated and 263,350 were closed. The Departments also state they are seeking to increase the number of IDR entities, which currently total 15.

House Committee Focuses on EBSA Transparency Reporting

On September 17, 2025, the House Committee on Education and the Workforce considered and approved three bills that would amend ERISA, including two bills focused on making EBSA more transparent and accountable in its enforcement activities.  

H.R. 2869, the EBSA Investigations Transparency Act, would amend ERISA to require EBSA to make an annual report to Congress on its civil investigations. The report would contain information on each EBSA regional or district office investigation, including the date the investigation was opened, the date documents were first requested, whether the investigation was concluded within 36 months, and, for an investigation extending beyond 36 months, the reason it had not been concluded and the estimated date of completion. The report would not include information identifying any private party to the investigation, including any plan sponsor, fiduciary, service provider, employee, or participant.

H.R. 2958, the Balance the Scales Act, would amend ERISA to require EBSA to enter into an agreement with an individual before providing any "adverse assistance" to them and impose related reporting requirements. The required agreement would delineate the nature and scope of the assistance to be rendered by EBSA and must be provided in advance to any employer, plan sponsor, or fiduciary that may be impacted by the adverse assistance. The term "adverse assistance" is defined as "assistance or advice, including the disclosure of information... that is directed specifically toward an attorney for potential use in a civil action under section 502(a)" of ERISA. EBSA would be required to report to Congress annually on all such adverse assistance agreements, including a log of verbal communications regarding information shared pursuant to an agreement and an explanation of how each agreement "is consistent with the public policy of promoting the voluntary sponsorship of employee benefits plans" subject to ERISA.

The Committee also approved H.R. 5159, the Retire through Ownership Act, which would amend ERISA's definition of "adequate consideration" to state that "a fiduciary of an employee stock ownership plan (as defined in section 407(d)(6)) may in good faith rely upon a valuation provided by an independent valuation or business appraiser if such expert or appraiser relied upon the principles and methodologies set forth in Internal Revenue Service Revenue Ruling 59–60 (as amplified, clarified, distinguished, or modified from time to time) in determining the fair market value of the asset."
 
We'll see whether these bills are submitted for consideration by the full House.

DOL Addresses Lifetime Income Investment Products as QDIAs

On September 23, 2025, DOL issued Advisory Opinion (AO) 2025-04A addressing whether AllianceBernstein L.P.'s Lifetime Income Strategy (LIS) program, which provides a guaranteed lifetime withdrawal benefit (GLWB) to defined contribution (DC) plan participants funded through a variable annuity contract, qualifies as a qualified default investment alternative (QDIA) under ERISA § 404(c)(5) and 29 CFR 2550.404c-5. 

According to the AO, the LIS program is offered to participant-directed DC plans as part of AllianceBernstein's investment management services. In the LIS program, as a participant ages, their investment allocations are shifted from higher risk equities to fixed-income investments. When the participant reaches age 50, participant funds are gradually allocated to a Secure Income Portfolio (SIP), offered through a variable annuity contract, to provide the GLWB. If a participant does not select an allocation percentage for the SIP, a default allocation percentage selected by the plan sponsor applies.

In the advisory opinion, DOL states that "[w]ith regard to whether investment management services, described in paragraph (e)(4)(iii) of the QDIA regulation, may incorporate lifetime income products and features in compliance with the regulation, it is the view of the Department that such investment alternatives can be QDIAs provided they satisfy the transferability requirements and other provisions of the regulation." DOL further states that "the LIS program would not fail to be a QDIA solely because it is offered through a variable annuity contract with a GLWB component." The AO goes on: "Whether a fiduciary has satisfied its duties under ERISA section 404(a) in selecting the LIS program, or any other investment alternative, as a QDIA for any particular plan would depend on the facts and circumstances."

DOL also opined on the fiduciary duties of a section 3(38) investment manager with respect to the selection and monitoring of annuity insurers in the LIS program or similar program, stating that a fiduciary may "satisfy its fiduciary responsibility under ERISA § 404(a)(1)(B) if it makes the selections in accordance with the conditions of one of [two non-exclusive safe harbors available under ERISA for selecting annuity providers for DC plans]." 

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