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Seyfarth Synopsis: On August 11, 2026, the Internal Revenue Service issued proposed regulations addressing nondiscrimination rules for dependent care assistance programs (“DCAPs”) under Section 129 of the Internal Revenue Code (the “IRC”). More than 45 years after DCAPs were enacted under IRC § 129, these proposed regulations provide long-awaited guidance on DCAP nondiscrimination testing and also address employer contributions and nondiscrimination rules for Trump Accounts. For additional information on Trump Accounts, see our blogs here and here.

Background:

A DCAP allows employees to pay eligible dependent-care expenses with pre-tax dollars. Employers may also contribute to an employee’s DCAP. For 2026, the maximum amount that may be excluded from an employee’s gross income is $7,500, or $3,750 for a married individual filing separately.

Eligible expenses generally include care for:

  • A child under age 13; or
  • A spouse or dependent who lives with the employee and is physically or mentally incapable of self-care

The proposed regulations confirm and elaborate on the four statutory nondiscrimination tests applicable to DCAPs:

  • Contributions and benefits test
  • Eligibility test
  • Owner concentration test
  • Average benefits test

For the first time, each test receives detailed regulatory guidance.

Continue Reading Worth the Wait: After 45 Years, Dependent Care Assistance Programs Finally Get Regulations
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Seyfarth Synopsis: In newly issued ACA Implementation FAQs (Part 74), the Departments of Labor, Health and Human Services, and Treasury provide welcome guidance for employers sponsoring health-contingent wellness programs. Most notably, the agencies announced temporary enforcement relief regarding the retroactive application of wellness program rewards when a participant satisfies a reasonable alternative standard mid-year and clarified when plans must provide notice of the availability of a reasonable alternative standard.

Background

HIPAA’ s nondiscrimination rules generally prohibit group health plans from varying eligibility, benefits, or premiums based on a health factor. An important exception permits employers to offer certain wellness program incentives, such as premium discounts, rebates, reduced cost-sharing, or the absence of a surcharge, when participants satisfy specified wellness-related conditions. The Affordable Care Act largely codified these rules and continued the distinction between participatory only wellness programs and health-contingent wellness programs.

For health-contingent wellness programs, the regulations require that the “full reward” be made available to all similarly situated individuals, including through a reasonable alternative standard for participants who cannot satisfy the initial health-related requirement. Examples include tobacco cessation programs, biometric screening programs, or programs tied to specific health outcomes.

Wellness Programs Continue to Face Scrutiny

The guidance also comes at a time when health-contingent wellness programs, particularly tobacco cessation and tobacco surcharge programs, continue to attract litigation. Plaintiffs have challenged whether certain tobacco-related wellness programs satisfy HIPAA’s nondiscrimination rules, including the requirement to offer participants a reasonable alternative standard for earning the reward or avoiding a surcharge. Against that backdrop, employers have sought additional clarity regarding the administration of tobacco cessation programs and the availability of wellness incentives. The Departments’ decision to provide enforcement relief and clarify notice obligations may help reduce some of the uncertainty that has surrounded the operation of these programs in recent years.

Retroactive Rewards: Enforcement Relief for Plans

Since the 2013 wellness program regulations were issued, plan administrators have questioned whether a participant who satisfies a reasonable alternative standard partway through the plan year must receive the wellness reward retroactively back to the beginning of the year or only prospectively from the date the alternative standard is satisfied. The uncertainty arose because the preamble to the 2013 regulations appeared to require retroactive rewards, while neither the regulatory text itself nor the statute clearly imposed that requirement.

In response, the Departments announced that, pending future guidance or regulations, they will not take enforcement action against a plan or issuer that provides the reward only for the period after the participant satisfies the reasonable alternative standard, provided the plan otherwise complies with the applicable wellness program requirements.

This enforcement approach provides employers with greater administrative flexibility. Rather than recalculating and refunding premium surcharges or other incentives retroactively to the first day of the plan year, plans may provide the reward prospectively once the participant completes the reasonable alternative standard.

Importantly, the Departments emphasized that this relief does not alter the underlying requirements governing wellness programs. Plans must still be reasonably designed to promote health or prevent disease, may not operate as a subterfuge for discrimination based on a health factor, and must continue to offer reasonable alternative standards that provide participants with a meaningful opportunity to earn the reward.

Clarification of Notice Requirements

The FAQs also address another recurring compliance question regarding when plans must disclose the availability of a reasonable alternative standard.

The Departments confirmed that the required notice must be included in all plan materials describing the terms of a health-contingent wellness program. In addition, for outcome-based wellness programs, the notice must appear in communications informing an individual that he or she did not satisfy the initial standard. The notice must include contact information for obtaining a reasonable alternative standard and indicate that recommendations from the participant’s physician will be accommodated.

At the same time, the agencies clarified that not every mention of a wellness program triggers the disclosure requirement. Materials that merely note the existence of a wellness program, without describing its terms, are not required to include the reasonable alternative standard notice. As an example, the FAQs explain that a Summary of Benefits and Coverage (SBCs) that simply notes that cost-sharing may vary based on participation in a wellness program generally would not require the disclosure if it does not describe the program’s specific requirements.

Takeaways for Plan Administrators

Plans offering health-contingent wellness programs, particularly tobacco surcharge programs, should review their wellness program administration and communications in light of the FAQs.

Key action items include:

  • Evaluating whether current payroll and premium administration practices align with the agencies’ enforcement relief regarding mid-year completion of reasonable alternative standards.
  • Confirming that wellness program notices are included in documents that describe program terms and participant requirements.
  • Reviewing participant communications to ensure that required reasonable alternative standard language is provided where applicable.
  • Monitoring future regulatory developments, as the Departments indicated additional guidance or regulations may be issued on these issues.

Conclusion

Although the FAQs do not change the underlying wellness program rules, they provide practical compliance relief and helpful clarification on two issues that have generated uncertainty for plan administrators for more than a decade, and have spawned a spate of recent litigation. Employers that utilize health-contingent wellness programs should take this opportunity to confirm that both their administrative practices and participant communications remain aligned with current agency guidance.

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Seyfarth Synopsis: Section 103 of the SECURE Act 2.0 replaces the Saver’s Credit with a new matching contribution from the federal government. Since the enactment of SECURE 2.0, there have been a number of questions about the implementation of this new matching contribution, and how it will operate. In IRS Notice 2026-48 (“Notice”), the Treasury Department and IRS announced that they intend to propose regulations and other guidance regarding the Saver’s Match program. The Notice does not establish proposed or final regulations. Rather, it outlines the government’s current views on how it expects the Saver’s Match program to work and previews issues that Treasury and the IRS anticipate addressing in future guidance.

What is the Saver’s Match?

Beginning in 2027, the Saver’s Match will replace the federal Saver’s Credit. By way of background, the Saver’s Credit is an income tax credit of up to $1,000 ($2,000 if married filing jointly) that reduces a taxpayer’s federal income tax liability.   

Instead of providing a tax credit, the Saver’s Match is a contribution to an employer’s qualified retirement plan or an IRA from the federal government of up to 50% of what the taxpayer contributes to the retirement plan or IRA, capped at a match of up to $1,000. The Saver’s Match rate is based on an individual’s tax filing status and modified adjusted gross income. For married individuals filing jointly, the match applies to each spouse. Certain individuals, such as those that are under age 18, are not eligible. After SECURE 2.0 was enacted, a number of open questions arose with respect to the Saver’s Match, primarily administrative questions and concerns. For example:

  • Are employer-sponsored retirement plans required to accept these contributions?
  • How will taxpayers “apply” for the Saver’s Match contribution?
  • How will these Saver’s Match contributions be transmitted from Treasury to an employer-sponsored retirement plan?
  • What do employer’s do with these contributions once they are in the plan?  Do they have to be separately tracked?
  • What withdrawal, distribution and reporting requirements apply to Saver’s Match contributions?
  • Will recordkeeper/TPA platforms support these contributions?
  • What if errors arise in the calculation and/or transmittal of the Saver’s Match? How are these issues corrected?

The Notice directly addresses several of the questions outlined above, while leaving room for additional guidance and regulations.

Continue Reading New Saver’s Match, New Plan Sponsor Decisions
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Seyfarth Synopsis: The IRS has issued further guidance on Trump Accounts addressing employer contributions and eligible investments in which Trump Account funds may be invested.

We discuss the new guidance in our Legal Update here. As discussed in our prior blog posts, including “Trump Accounts: The New Kid on the IRA Block” and “No ERISA Strings Attached: The DOL Weighs In on Employer and Employee Contributions to Trump Accounts”, regulators have been slowly rolling out guidance since the announcement of Trump Accounts.

Implementing a Trump Account Contribution Program

Under the Proposed Rules, employers seeking to contribute to a Trump Accounts contribution program (a “Program”) must satisfy the following requirements:

  1. Plan Document Requirement. A Program must be established under a separate written plan document.
  2. Tax-Advantaged Contributions and Limitations. Contributions to a Program are permitted up to a maximum dollar limit of $2,500 (subject to inflation adjustments) which applies per employee; not per eligible dependent.
  3. Eligibility Requirements. Contributions are permitted only until the beneficiary turns 18. One of the more employer-friendly aspects of the proposal permits employers to rely on employee certifications, rather than requiring employers to independently verify every dependent’s age and dependent status.
  4. Nondiscrimination Rules. Certain rules will apply to contributions to a Program that prohibit discrimination in favor of highly compensated employees (“HCEs”). The nondiscrimination rules track the nondiscrimination rules that apply to dependent care flexible spending accounts.
  5. Trustees. Employers must still verify that the contributions are going to an actual Trump Account, and unlike employer contributions to a Health Savings Account, employers cannot limit contributions under their Program to Trump Accounts held by a particular trustee.
  6. Notices and Reporting. The Proposed Rules reference notices to employees, annual statements, and reporting obligations involving account trustees.

Investment Rules

Investments in Trump Accounts will be selected by the trustees holding the individual Trump Account funds, not their employers. Treasury previously announced that all contributions to Trump Accounts would be defaulted to the State Street SPDR Portfolio S&P 500 ETF (SPYM). The Proposed Rules elaborated on permissible investments and specified that Trump Account funds may not be invested in index funds that correspond to environmental, social, and governance (ESG) indices. 

Potential Challenges

Although the Proposed Rules address some of the key questions relating to Trump Account administration, a number of potential challenges remain. Please see our Legal Update here for more details. We will continue to monitor developments as Treasury and the IRS work toward final regulations and additional operational guidance.

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Seyfarth Synopsis: The Department of Labor (DOL) recently issued Technical Release 2026-02, which clarifies that neither Trump Accounts nor employer contributions to Trump Accounts are considered “employee pension benefit plans” under Section 3(2) of ERISA. For additional information about Trump Accounts, please see our prior to blog posts here and here.

What We Already Knew about Employer and Employee Contributions to Trump Accounts

The One, Big, Beautiful Bill Act and related Treasury guidance previously provided the following parameters for employer and employee contributions to Trump Accounts:

  • Employers may contribute up to $2,500 to Trump Accounts of young employees or children of employees under an Internal Revenue Code Section 128 program (“Section 128 Program”). These contributions are not considered taxable income to the employees or the Trump Account beneficiaries.
  • The $2,500 limit applies on a per employee basis, meaning that if an employee has multiple children with Trump Accounts, the employer’s aggregate contributions to those children’s Trump Accounts may not exceed $2,500.
  • Employers can facilitate pre-tax employee contributions to Trump Accounts for the employee’s dependents (but not the employee) through a Section 125 cafeteria plan.  However, these employee contributions are technically still considered “employer” contributions under a Section 128 Program and would therefore be subject to the same $2,500 limit described above.
  • All Section 128 Program contributions must be made pursuant to a written plan document and the contributions must comply with applicable nondiscrimination testing rules (which are expected to look similar to the nondiscrimination testing rules applicable to Dependent Care Spending Accounts).
Continue Reading No ERISA Strings Attached: The DOL Weighs in on Employer and Employee Contributions to Trump Accounts
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On February 25, 2026, the Department of Labor (DOL) issued proposed regulations implementing Section 338 of SECURE 2.0, which generally requires defined contribution plan administrators to furnish at least one benefit statement on paper every calendar year and defined benefit plan administrators to furnish at least one pension benefit statement on paper every three calendar years. The proposed regulations specify how plan administrators that otherwise comply with the 2002 or 2020 electronic disclosure safe harbors under Title I of ERISA can comply with this new requirement. Please see our prior blog post for a summary of the existing electronic disclosure safe harbors.

For plans using the 2002 “wired-at-work or consent” safe harbor, the proposed regulations would require plan administrators to provide a one-time paper notice — provided before any electronic qualified retirement plan benefit statement — to participants, beneficiaries, or alternate payees who first become eligible on or after January 1, 2026, informing them of their right to opt out of electronic delivery and receive all disclosures required under Title I of ERISA (i.e., SPDs, SMMs, SARs, benefit statements, etc.) on paper, free of charge. This requirement applies only to newly eligible individuals and is not retroactive (i.e., the plan administrator does not need to provide the one-time notice to individuals who became eligible for the qualified retirement plan prior to January 1, 2026). Notably, the DOL specifically contemplates that this notice will be included with other new-hire and benefit explanation documents, meaning that a separate specific notice for this purpose is not required. Further, the one-time notice is required only if the plan chooses to send the required annual (DC plans) or triennial (DB plans) pension benefit statement electronically under the 2002 safe harbor, rather than mailing it on paper. This proposed change is significant because the “wired-at-work” safe harbor does not currently require plan administrators to give participants the option to opt out of electronic distribution. Plan administrators will need to discuss implementation of this new opt out feature with their third-party recordkeepers. 

For plans using the 2020 “notice and access” safe harbor, the proposed regulations would exclude the newly mandated paper pension benefit statements from the 2020 safe harbor unless the individual affirmatively elects electronic delivery. The 2020 notice and access safe harbor did not previously include an affirmative election requirement, so plan administrators will need to coordinate with their third-party recordkeepers to discuss how to best solicit participant elections for electronic delivery (if desired). In addition, the proposed regulations would require that pension benefit statements (1) describe how to request that such statements be furnished electronically; and (2) include contact information for the plan sponsor, plan administrator or other designated plan representative. Fees for paper benefit statements are prohibited. 

SECURE 2.0 provides that the new paper benefit statement requirement will apply for plan years beginning on or after January 1, 2026. Importantly, however, the DOL has stated it will not take enforcement action against plan administrators that comply in good faith with a reasonable interpretation of the proposed rules. Plan administrators therefore should evaluate their current disclosure practices and assess whether operational changes will be needed for the current and upcoming plan years.

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Seyfarth Synopsis: Two unpublished decisions involving the same change in control severance plan went in opposite directions on the standard of review. In 2026, the Fifth Circuit applied abuse of discretion based on plan language delegating interpretive authority to the administrator. In 2025, the Tenth Circuit applied de novo review to similar facts involving the same plan because it viewed the delegation as triggered only by textual ambiguity. The divergent results underscore the importance of carefully drafted discretionary authority clauses in top hat severance plans, particularly for employers seeking to avoid de novo review of factual eligibility disputes.

What happened in the Fifth Circuit?

  • On February 26, 2026, the United States Court of Appeals for the Fifth Circuit issued an unpublished opinion affirming summary judgment for the Anadarko Petroleum Corporation Change of Control Severance Plan and its administrative committee.
  • The dispute centered on whether an executive was eligible to resign for “good reason” after a change in control based on a “material and adverse” diminishment in duties or a material reduction in base salary.
  • The plan empowers the committee to interpret the plan and to construe ambiguous, unclear, or implied terms “in its sole judgment,” and states that its interpretations and determinations are not subject to de novo review.
  • The former employee argued that the plan’s standards for “good reason” were ambiguous that therefore did not trigger the administrative committee’s discretion.
  • The court emphasized that deciding whether duties or salary were “materially” and “adversely” affected requires qualitative, comparative fact-finding—including comparing duties, authority, and compensation before and after the change in control—and concluded that abuse of discretion was the appropriate standard of review.

What happened in the Tenth Circuit?

  • In an earlier unpublished decision, Hoff v. Amended and Restated Anadarko Petroleum Corporation Change of Control Severance Plan, the Tenth Circuit addressed the same plan language and similar circumstances.
  • In this case, neither party argued the “material and adverse diminishment” language was ambiguous. Treating ambiguity as a strictly textual question, the court read the plan’s delegation as operative only if a term was ambiguous on its face.
  • Because no textual ambiguity was claimed, the court declined to defer and applied de novo review to the committee’s determination.
  • Under the de novo lens, the court independently concluded the employee’s responsibilities were materially and adversely diminished and awarded benefits.

Why the same clause produced different review standards

The Fifth Circuit treated ambiguity as arising through application. It emphasized that determining whether duties were materially and adversely diminished after a change in control requires comparative factual assessments and judgment about the significance of the changes. Because the Severance Plan grants the committee authority to interpret the plan and bars de novo review of its determinations, the court concluded that these evaluative determinations fall within the committee’s discretionary authority, making abuse of discretion the proper standard.

The Tenth Circuit instead treated ambiguity as a strictly textual question. It concluded that discretionary authority applies only when a term is ambiguous as written. Because the parties in Hoff did not argue that the material and adverse diminishment standard was ambiguous, the Tenth Circuit viewed the language as clear, found no basis to invoke the delegation of discretion, and therefore applied de novo review.

As a result, identical plan language produced two different standards of review because the Fifth Circuit recognized ambiguity in the evaluative work required, while the Tenth Circuit recognized ambiguity only when the text itself was unclear.

Practical implications for plan sponsors

Although the Fifth Circuit and Tenth Circuit opinions are unpublished and therefore not precedential, they nonetheless provide meaningful insight into how courts may approach the interpretation of severance plan discretionary clauses. The split demonstrates the vulnerability of clauses that tie deference only to ambiguous terms. To reduce that risk, consider:

  • Delegate discretion broadly. Grant the administrator explicit authority to make all determinations under the plan, including factual findings, eligibility assessments, and interpretations of all terms—whether or not ambiguous.
  • Mandate deferential review.  State that all interpretations, determinations, and findings of fact are final and binding unless arbitrary or capricious.
  • Avoid ambiguity triggers. Do not limit discretion to “ambiguous,” “unclear,” or “implied” terms; that limitation invites de novo review.
  • Call out judgment-heavy topics. Clarify that materiality assessments, comparative evaluations of duties and authority pre- and post-transaction, and compensation-change assessments fall squarely within the administrator’s discretion.

The takeaway

Unpublished or not, these decisions are a timely reminder that the breadth and framing of a severance plan’s discretionary authority clause can decide the standard of review—and, with it, the outcome of a court’s review of close eligibility disputes. Employers should review their severance plans and discuss with legal counsel if the delegation of authority in its plan will ensure the maximum deference is afforded to the plan decisionmaker’s eligibility decisions.

Please contact the authors or the employee benefits attorney at Seyfarth with whom you usually work if you have any questions regarding the review standards in your severance or other ERISA plans.

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Seyfarth Synopsis: Since Trump Accounts made their debut as the “New Kid on the IRA Block” in December 2025, Treasury and the IRS have released proposed regulations that add important—but not always simplifying—details to the program. 

The proposed regulations, released on March 9, focus heavily on pilot contribution eligibility and enrollment, adding new protections against multiple accounts being opened for the same child. Unfortunately, none of the newly proposed regulations speak to the mechanics of employer contributions to Trump Accounts. 

Confirmed Designs

The proposed regulations specify that the $1,000 federal pilot contribution applies only to children born 2025–2028, who are U.S. citizens with a Social Security Number (SSN) and have no prior pilot program election on file.

Authorized individuals can elect to open a Trump Account for a child at any time from SSN issuance through the end of the year in which the child turns 17. The IRS reaffirmed the use of Form 4547 to establish a Trump Account and request the $1,000 pilot program contribution.

Trump Account contributions cannot begin until July 4, 2026. An annual $5,000 total contribution cap will apply (including up to $2,500 from employers). Importantly, the proposed regulations confirm that any pilot program contributions do not count towards the annual $5,000 limit. Investments remain limited to index funds primarily composed of U.S. equity investments.

As a reminder, Trump Account funds generally remain locked until the year the child turns 18 and will typically follow traditional IRA rules after the child turns 18 (at which point the funds can be used for a variety of qualifying purposes, including education expenses, job training, down payment on a first home, capital to start a small business, and retirement).

Administrative Questions

On April 6, 2026, Treasury announced that the Bank of New York Mellon Corporation (“BNY”) will manage initial Trump Accounts and develop an associated app. Robinhood will serve as the brokerage and initial trustee of Trump Accounts.

Otherwise, many open questions remain with respect to the establishment and administration of Trump Accounts. For employers specifically, unanswered questions include applicable ERISA exemptions, plan document requirements and coordination with Section 125 cafeteria plans—all issues Treasury says it will address at a later date.

Takeaway

The Trump administration remains committed to the Trump Account program and eligible families will have the option to open a Trump Account when submitting their 2025 federal tax return. However, many open questions remain. We expect additional guidance later this year.

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Since 2019, Congress has enacted three major pieces of legislation impacting retirement plans, significantly changing the retirement landscape. The legislation contained a number of amendments to the Internal Revenue Code and the Employee Retirement Income Security Act, as amended, that impact employer-sponsored retirement plans (e.g., 401(k) plans, 403(b) plans, defined benefit plans, and even Puerto Rico plans).

In a nutshell, the legislation we’re talking about includes:

  1. SECURE Act (1.0).  Signed into law on December 2019, the Setting Every Community Up for Retirement Enhancement (SECURE) Act was by far the most significant overhaul of the retirement plan landscape since the Pension Protection Act of 2006. Click here and here for more information.
  2. CARES Act.  The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law on March 27, 2020.  The CARES Act included provisions that provided a much-needed lifeline for participants during the unprecedented COVID-19 pandemic. Click here for more information.
  3. SECURE Act 2.0. SECURE 2.0 made even more changes to the retirement plan landscape (90+), with phased effective dates. Many of the mandatory provisions are already effective. Click here for more information.

Some of the changes impacting retirement plans are mandatory (i.e., they MUST be adopted), while others are optional (i.e., they MAY be adopted at the election of the plan sponsor).  Also, many of the mandatory provisions are already in effect, meaning that plans must currently be complying with some of these provisions from an operational perspective. The IRS and DOL have been hard at work on issuing regulations and other guidance on many of these provisions, and we’ve been given some additional time to adopt any necessary plan amendments. However, the deadline for adopting most amendments is December 31, 2026, which is fast approaching.

Because there have been so many mandatory and optional changes impacting retirement plans, our team has prepared a tool/checklist that our clients can use to review the plan and figure out what, if anything, plan sponsors must do to get their documents in compliance with all of these new rules by the December 31, 2026 amendment deadline. 

For plans that use a pre-approved document, these changes and the December 31, 2026 amendment deadline still apply, but the draft amendments will be prepared by the pre-approved provider. In the interim, we recommend reviewing the checklist with your Seyfarth Shaw attorney to confirm that all mandatory provisions have been/will be implemented, and to identify any optional changes the plan sponsor has adopted/would like to adopt.

We encourage you to speak with your Seyfarth Shaw attorney ASAP regarding your retirement plan and next steps.

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If you are tired of keeping track of which retirement plan investments are deemed “good” and which are suddenly “bad”, we have encouraging news. The Department of Labor’s (“DOL’s”) latest proposed rule goes back to the fundamentals and our favorite mantra—it’s not what you pick, it’s how you pick it.

The DOL’s proposed rule on selecting and monitoring 401(k) and 403(b) investment options emphasizes process over product. In doing so, it reinforces a long-standing ERISA principal—prudence is measured by the quality of a fiduciary’s decision-making, not by investment outcomes.

At the core of the proposal is a six‑factor, asset‑neutral framework for evaluating designated investment alternatives, including target‑date and other asset‑allocation funds. No investment asset class or strategy is singled out for special treatment, favorable or otherwise. Notably, the proposal says nothing about the recent boogeymen of crypto or ESG. Instead, the focus remains where committees are most comfortable (and regulators most consistent): a disciplined process, informed oversight, and contemporaneous documentation.

For fiduciary committees, the message is familiar but worth repeating—committee minutes matter, benchmarks matter, liquidity and valuation deserve attention, and knowing when to rely on expert advice is crucial.

📌 Our Legal Update summarizes the proposed rule, explains the new prudence safe harbor, and highlights practical considerations for committees reviewing their investment selection and monitoring practices.