Congressional Testimony
Congressional Testimony
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GSA Public Buildings Service Acting Commissioner Heller Testifies Before House Transportation & Infrastructure Subcommittee
WASHINGTON, Dec. 21 -- The House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management released the following written testimony by Andrew Heller, acting commissioner of the Public Buildings Service at the General Services Administration, from a Dec. 11, 2025, hearing entitled "Cutting Costs, Adding Value: The Future of Federal Property":* * *
Good morning, Chairman Perry, Ranking Member Stanton, and distinguished Members of the Subcommittee. My name is Andrew Heller, and I am the Acting Commissioner of the Public Buildings Service (PBS) ... Show Full Article WASHINGTON, Dec. 21 -- The House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management released the following written testimony by Andrew Heller, acting commissioner of the Public Buildings Service at the General Services Administration, from a Dec. 11, 2025, hearing entitled "Cutting Costs, Adding Value: The Future of Federal Property": * * * Good morning, Chairman Perry, Ranking Member Stanton, and distinguished Members of the Subcommittee. My name is Andrew Heller, and I am the Acting Commissioner of the Public Buildings Service (PBS)at the U.S. General Services Administration (GSA). I appreciate the Committee's invitation to appear before you today to discuss PBS's management of federal real property.
I would also like to thank this Subcommittee for its ongoing engagement in public buildings management, including through its oversight and prospectus approvals, and by advocating for full access to the Federal Buildings Fund (FBF) to ensure GSA has the resources necessary to optimize and improve its real property portfolio.
Additionally, the real property reforms supported by this Committee and enacted in Title III of the Thomas R. Carper Water Resources Development Act of 2024 are important steps toward improving federal real property management. GSA is working closely with the Office of Management and Budget, the Comptroller General of the United States, and applicable agencies to implement the Act and we look forward to making continued progress to implement this statute.
GSA is well positioned to deliver once-in-a-generation value to the American taxpayers and capitalize on this unique opportunity to right-size the portfolio by making smart and strategic investments that meaningfully reduce the size of the federal footprint. The government no longer needs, nor can it afford to maintain, the amount of real estate it currently owns. At the same time, GSA is cognizant of the impact of putting too many buildings on the market at the same time, and we will therefore manage the oversight of the sale of Federal property strategically and in close coordination with OMB.
GSA's strategy for right-sizing its portfolio is to dispose of underfunded, high liability federally owned facilities, and invest our limited capital on core buildings the Federal government needs to retain over the long term. To be successful, GSA will leverage our leasing authority as a more flexible tool for procuring general use office space on behalf of our customer agencies.
I'm proud to report that GSA has made great strides towards optimizing our footprint and meeting these goals. For example, in Fiscal Year 2025 we have -
* Executed 90 governmentwide real property dispositions including Federal Asset Sales and Transfer Act properties, resulting in a reduction of more than 3 million square feet and 8,000 acres of land, generating over $182 million in sales proceeds, and avoiding $415 million in estimated capital repairs and operating costs;
* Identified 45 GSA assets for accelerated disposition, representing 14.6 million square feet and $3 billion in estimated capital repairs and operating costs; and
* Generated approximately $730 million in cost avoidance by terminating unneeded leases, reducing leased space where appropriate, and negotiating leases with better terms.
I would like to thank the Subcommittee for recently recognizing in its 'Views and Estimates for FY 2026' the significant challenges GSA faces due to an aging inventory, difficulties disposing of excess property, and lack of full access to the FBF, which has, over the past fifteen years, increased deferred maintenance costs to the point that they have become delinquent maintenance costs. GSA charges federal agencies a commercially equivalent rent for the space they occupy, with the expectation that these funds will be used to properly maintain the space. However, with approximately $15 billion in FBF agency rent collections utilized for other purposes over the past 15 years, it has become exceedingly difficult to properly maintain our core assets in a state of good repair.
As our nominee for GSA Administrator, Ed Forst said at his confirmation hearing, "American taxpayers shoulder billions of dollars in delinquent maintenance costs under the federal government's current real estate portfolio. Those costs are likely underestimated and will only grow if left unaddressed."
It is no coincidence that GSA's delinquent maintenance, as noted by Mr. Forst, has risen to approximately $26 billion as identified through GSA's portfolio planning efforts By Mr. Forst reframing this issue as delinquent maintenance, GSA is intending to highlight the operational impacts of inaction and a lack of access to the FBF.
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Real Property Optimization:
To help address this unique challenge, GSA has proposed a transformational Optimization Program in the President's FY 2025 and 2026 budget requests. In FY 2026, GSA is requesting $365 million in funding for the real property Optimization Program. The purpose of the fund is three-fold:
1. Seizing the opportunity before us and dispose of underperforming buildings,
2. Investing in core assets to improve the quality of the remaining portfolio, including investing in beautiful buildings, and
3. Implementing cost-effective lease strategies that save money and shift the maintenance burden to the private sector.
Optimization projects will add value to the federal real property portfolio and be selected based on the following priorities:
1. Favorable Taxpayer Savings: The project clearly reduces agency costs, avoids future liabilities, or addresses existing ones.
2. High Readiness: The project requirements are well-defined, cost estimates are solid, and we are well positioned to start executing the project.
3. Acceptable Risk: The project has manageable complexity, without extensive phasing or major modernization, and tenants can be housed in cost effective solutions.
I would like to thank the committee for its partial authorization of this program on a markup earlier this summer. If full funding and authorization for this transformational special emphasis program is received, some examples of Optimization Projects could include:
* Captain John F. Williams Coast Guard Building - Boston, Massachusetts: By disposing of this 134,000 square foot underutilized building that has a 39% vacancy rate in a high value market, and consolidating a majority of tenants into an existing GSA core asset, we will reduce costs, improve the condition of our portfolio and reduce the size of the federal footprint.
* This project has Favorable Taxpayer Savings: Disposition of the asset will avoid almost $30 million in capital maintenance liabilities.
* It also has a High Level of Readiness: In anticipation of potential funding allocated in FY 2026, we are proactively developing space requirements and project schedules with our tenants.
* And it is considered to be Low Risk: The project would reduce the current tenant footprint by 68%, removing an estimated 60,000 square feet from our inventory by consolidating agencies into more functional and efficient space. Tenants are engaged with requirements development and project schedules, and GSA is preparing the core asset to absorb the United States Coast Guard, which is the facility's primary tenant, into its space.
* 312 N. Spring Street Federal Building and Courthouse - Los Angeles, California: By disposing of this large 715,000 square feet building that has a 35% vacancy rate in the highly valued downtown Los Angeles market, and relocating tenants into commercial leased space, the government can achieve greater efficiency and reduce ongoing maintenance burdens.
* This project also has Favorable Taxpayer Savings: Disposition of the asset will avoid almost $153 million in capital maintenance liabilities.
* In anticipation of potential funding allocated in FY 2026, we are proactively working requirements with our tenants, so it has a High Level of Readiness.
* And it is Low Risk: The project would reduce the tenant footprint by 66%, removing an estimated 344,000 square feet from our inventory. The Los Angeles market has a surplus of potentially cost effective leasing solutions.
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Recent Disposition Announcements:
Although full access to the FBF would facilitate more common sense solutions, GSA continues to work with Congress, the Public Buildings Reform Board (PBRB) and federal agencies to identify and dispose of more properties in an expedited manner.
Some examples of recently completed dispositions include:
1. Huntsville, Alabama: GSA completed the conveyance of the Huntsville
Courthouse and Post Office to the City of Huntsville, Alabama on September 15, 2025. Conveyance of this property will save taxpayers more than $520,000 annually in operating and maintenance costs and avoid over $10 million in estimated capital repairs over the next 10 years.
2. Menlo Park, California: GSA completed the public sale of the former United States Geological Survey campus in Menlo Park, generating $137 million in proceeds and offloading over 412,000 square feet. The sale will save taxpayers close to $4 million annually in operating and maintenance costs and avoid $107 million in estimated capital repairs. This property was identified for disposition under the Federal Assets Sale and Transfer Act (FASTA).
3. Des Moines, Iowa: GSA successfully sold the historic United States Courthouse in Des Moines in September 2025 for $2.6 million after completion of the new courthouse. The sale will save taxpayers over $1.6 million annually in operating and maintenance costs and avoid over $27 million in estimated capital repairs over the next 10 years. The sale returns a prime downtown riverfront location to productive re-use.
4. Charlottesville, Virginia: GSA worked with the Department of Education to convey the former Federal Executive Institute campus in Charlottesville to the University of Virginia (UVA) for a new campus ROTC center. GSA worked closely with the State Historic Preservation Office to satisfy historical preservation requirements, and coordinated closely with UVA to expedite this transfer after the Department of Education selected UVA as the grantee. This conveyance helps turn 91,000 square feet and 13 acres of surplus Federal real property into a center that educates future military leaders.
5. Washington, DC: GSA is working with its private sector broker partners to sell the Liberty Loan Building, a truly unique opportunity in the heart of Washington, DC. While the disposition has not been finalized yet, there is significant market interest with over 100 registrations and over two dozen tours. Initial offers are due later this month.
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Fiscal Year 2026 Request:
In FY 2026, GSA is requesting net zero obligational budget authority equal to its anticipated annual revenues and collections for a total of approximately $10.5 billion in gross budget authority for the FBF. The requested New Obligation Authority (NOA) includes $1.7 billion for GSA's Capital Investment Program whose funds are used to repair mission critical federally owned facilities and facilitate the disposition of underutilized assets through the optimization of core federal buildings. The request also includes more than $3 billion for Building Operations to support operating expenses.
As you know, agencies make rental payments to GSA with the expectation that such funds will be used to properly maintain the facilities they occupy. GSA's FY 2026 budget request highlights the FBF and certain challenges we have experienced over the past fifteen years due to a lack of appropriated funding commensurate with the annual revenues and collections deposited in the FBF. Simply put, we are not able to maintain facilities in a manner that our customer agencies expect due to these funding challenges. While increasing dispositions and relying more on leases for general use office space will help to address this issue, funding will be needed to facilitate the dispositions and to maintain our core assets in a state of good repair.
The President's budget request for GSA also supports the Asset Proceeds and Space Management Fund (APSMF). The purpose of the fund is to carry out actions recommended by the PBRB and approved by the Office of Management and Budget (OMB), consistent with the FASTA law. Access to these sales proceeds allows GSA to consolidate the federal footprint, maximize the utilization rate of federal buildings and facilities, reduce operating and maintenance costs, and expedite the sale or disposal of underutilized federal properties, which is why we are requesting $193.3 million in FY26.
One recent example of a project that utilized the APSMF is the William O. Lipinski Federal Building in Chicago, Illinois. By disposing of this underutilized property, the taxpayers will realize over $161 million in savings by eliminating delinquent maintenance liabilities. The APSMF funding has been critical to making this upcoming disposition possible, as it provides resources to cover essential move and personal property costs for the existing tenant agency. These costs have historically been an obstacle to right-sizing because the tenant agency lacked dedicated funding. By investing $20 million in disposition-related costs funded by the APSMF, we enable the tenant's transition, downsize their footprint by over 30%, and house the majority of their operations in a modern leased solution.
Let me say that again. With an upfront investment of less than $20 million using the proceeds from the sale of other federal real estate assets, the taxpayers can realize a savings of $161 million. These are the types of common sense real estate solutions that GSA can implement if funding is made available to cover the upfront costs associated with consolidation and disposition.
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PBS Reorganization:
I would like to take a moment to discuss how the PBS organization is changing to drive efficiency, flexibility, consistent service delivery, and innovation that will generate longterm savings and add value to the future state of federal real property:
1. Improve Operations and Efficiency: The PBS organization is transitioning to a fully integrated functional model, rather than a regional geographic structure. PBS is standardizing processes and streamlining operations by functional area to drive greater efficiency.
2. Construct A More Flexible Workforce: By integrating business functions on a national scale rather than being constrained by geographical boundaries, PBS can more efficiently leverage workload imbalances and allocate resources according to changing demands, while maintaining the geographic presence necessary to manage a large and dispersed real property portfolio.
3. Deliver Exceptional Customer Service: By driving consistency in standards, operations, and processes, PBS will improve service delivery. PBS has incorporated feedback from our customer agencies and stakeholders regarding the need for more consistency. This integrated functional alignment will improve consistency across PBS programs and result in improved service delivery.
4. Leverage New Technologies and Processes: PBS is developing new ways of conducting business through this realignment and standardization by using new technologies, improving our data infrastructure and analytics, and developing innovative real estate solutions.
PBS began operating in this new organizational structure in late-October. GSA is appreciative of this Committee's support and partnership of our realignment and Fiscal Year (FY) 2026 budget request, which will help GSA more effectively serve our customers and the American taxpayer. Feedback from our stakeholders has been positive.
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Conclusion:
In conclusion, as federal real property needs continue to evolve, GSA is well positioned to deliver savings and enhance collaboration with customer agencies, this Committee, and other Congressional stakeholders.
Your support is vital to right-sizing the Federal footprint, and I humbly request the Committee's support for GSA's FY 2026 budget request, including key investments in the Federal Buildings Fund and the Asset Proceeds and Space Management Fund.
These tools will help to reshape the Federal footprint by making GSA's portfolio smaller, more functional, and less expensive to operate and maintain.
I am very proud of the work that we are doing to help return GSA to its founding mission drafted over 75 years ago--a mission designed to help customer agencies achieve their missions through cost-effective real estate management.
I look forward to partnering with the distinguished members of this Committee to address the key priorities that drive efficiency and effectiveness in federal real estate.
Thank you for the opportunity to testify before you today, and I look forward to answering any questions you may have.
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Original text here: https://transportation.house.gov/uploadedfiles/12-11-2025_edpbem_hearing_-_andrew_heller_-_testimony.pdf
GAO Managing Director Krause Testifies Before House Transportation & Infrastructure Subcommittee
WASHINGTON, Dec. 21 -- The House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management released the following written testimony by Heather Krause, managing director of physical infrastructure issues at the Government Accountability Office, from a Dec. 11, 2025, hearing entitled "Cutting Costs, Adding Value: The Future of Federal Property":* * *
Chairman Perry, Ranking Member Stanton, and Members of the Subcommittee:
Federal real property management has been on GAO's High-Risk List since 2003./1
We have previously reported that better ... Show Full Article WASHINGTON, Dec. 21 -- The House Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings and Emergency Management released the following written testimony by Heather Krause, managing director of physical infrastructure issues at the Government Accountability Office, from a Dec. 11, 2025, hearing entitled "Cutting Costs, Adding Value: The Future of Federal Property": * * * Chairman Perry, Ranking Member Stanton, and Members of the Subcommittee: Federal real property management has been on GAO's High-Risk List since 2003./1 We have previously reported that bettermanagement is needed to effectively dispose of underused buildings, collect reliable real property data, and improve the condition of federal buildings. While the challenges of managing federal real property are governmentwide, the Public Buildings Service (Buildings Service), within the General Services Administration (GSA), is the agency component whose primary mission is to manage federal real property. Specifically, the Buildings Service's mission is to provide workspace for more than 1 million federal employees at the best value for taxpayers.
As of September 2025, the Buildings Service's portfolio includes about 8,500 owned and leased properties covering, 359 million square feet and housing 80 tenant agencies. It collects more than $10 billion annually in rent from its tenants and provides tenants with a broad range of real estate services, including maintaining owned buildings, negotiating leases, disposing of unneeded properties, and helping agencies plan their real property portfolios. The administration has expressed a desire for a smaller and more efficient federal workforce, including in its February 26, 2025, memo, Guidance on Agency Reduction in Force and Reorganization Plans (ARRP). Since March 2025, the Buildings Service has been engaged in a large-scale reorganization. Buildings Service officials told us in September 2025 that they planned to finalize this reorganization in October 2025. GAO has not confirmed with GSA how the recent lapse in appropriations affected its implementation timeline.
The successful implementation of this reorganization will be critical for the Buildings Service's ability to address longstanding real property management challenges moving forward.
My statement today discusses: (1) how the recommendations made concerning issues of underused buildings, data reliability, and the condition of federal buildings on GAO's High-Risk List relate to GSA; and (2) the reorganization efforts of GSA's Buildings Service as of October 2025. We plan to report more fully on the Buildings Service's reorganization in the coming months. Our description of GSA's efforts to address high-risk issues is based on GAO's prior work and reflects GAO's latest High-Risk Update, released on February 25, 2025./2
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1 Since the early 1990s, our high-risk program has focused attention on government operations with significant vulnerabilities to fraud, waste, abuse, and mismanagement or that need transformation to address economy, efficiency, or effectiveness challenges. GAO, High-Risk Series: Heightened Attention Could Save Billions More and Improve Government Efficiency and Effectiveness, GAO-25-107743 (Washington, D.C.: Feb. 25, 2025).
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To identify the efforts the Buildings Service has made to reorganize, we reviewed pertinent documents and interviewed GSA officials.
We conducted the work on which this statement is based in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.
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GSA Actions Have Resulted in Improvements to the High-Risk Area of Managing Federal Real Property, but More Progress is Needed
Underused Buildings
Federal agencies, many of which are tenants in buildings managed by the Buildings Service, have long struggled to determine how much space they need to fulfill their missions. Retaining underused space costs millions of dollars and is one of the main reasons that federal real property management has remained on GAO's High-Risk List since 2003.
The following are key actions that Congress, GSA, and others have taken to address underused buildings in recent years.
* Enacted in January 2025, the Utilizing Space Efficiently and Improving Technologies (USE IT) Act requires agencies to measure building utilization and plan to dispose of underused space./3
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2 GAO-25-107743.
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Specifically, it requires that agencies measure the utilization of public buildings by comparing the usable square footage of each space to the occupancy of the building./4
If a tenant agency's building utilization remains below 60 percent capacity for 2 consecutive years, GSA, in consultation with the Office of Management and Budget (OMB), must take steps to reduce the amount of underused space. This Act, combined with effective implementation, would address our 2023 recommendation on the need for government-wide guidance on measuring space utilization./5
* In March 2025, GSA announced it would begin disposing of federally owned office buildings using what it described as an accelerated approach. As of November 2025, GSA had identified 45 federal properties--many of which were previously identified for disposal--for this accelerated approach. GSA estimates that disposing of these properties will reduce the federal government's real property inventory by 14.6 million square feet and save $106 million in annual operations and $3 billion in deferred maintenance costs.
* In addition, as of August 2025, a temporary real property disposal process established under the Federal Assets Sale and Transfer Act of 2016 (FASTA) had resulted in GSA selling 11 properties for a total of $331 million./6
In May 2025, the board created under FASTA also recommended 11 additional GSA properties for disposal.
* In February 2025, GSA initiated an effort to reduce unneeded and underused space leased by GSA for federal tenant agencies. GSA targeted its space reduction effort on federal leases in the "soft term," the part of the lease term subject to termination rights./7
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3 Thomas R. Carper Water Resources Development Act, Pub. L. No. 118-272, Sec. 2302, 138 Stat. 2992, 3218 (2025).
4 Occupancy is the average number of employees performing duties in person in a public building or federally leased space at least 40 hours per week over a 2-month period. Covered agencies were directed to begin collecting utilization measurements beginning no later than July 3, 2025, 180 days after the date of enactment. Id. Sec. 2302(b)(2).
5 GAO, Federal Real Property: Agencies Need New Benchmarks to Measure and Shed Underutilized Space, GAO-24-107006 (Washington, D.C.: Oct. 26, 2023).
6 Pub. L. No. 114-287, 130 Stat. 1463 (codified as amended 40 U.S.C. Sec. 1303 note). FASTA originally included three rounds of recommendations by the Public Buildings Reform Board, but recently enacted legislation directed an additional, fourth round to identify additional properties. Pub. L. No. 118-272, Sec. 2301, 138 Stat. at 3214.
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According to GSA officials, GSA consulted with tenants prior to sending formal intent to terminate lease letters. GSA sent letters to federal tenant agencies asking them whether the agency's ability to fulfill its mission would be "irreparably compromised" if GSA were to terminate these leases. GSA estimates $112 million in annual costs savings from over 260 completed lease terminations or leases for which GSA has sent an intent to terminate.
* In March 2025, GSA launched a program called Space Match to help federal agencies find available office space in underused space.
According to GSA, potential benefits of the program include helping agencies find available space as employees return to in-person work; optimizing the use of underused space; and creating a collaborative work environment for agencies. GAO has not reviewed this program.
We are currently reviewing GSA's real property disposal and sales processes. We expect to issue reports on those topics in 2026.
Effective real property management and decision-making is difficult without reliable data. GSA relies on federal agencies to submit accurate data to the Federal Real Property Profile, the government-wide database of federal real property that GSA uses to manage buildings, structures, and land. We have identified problems with the reliability of federal real property data since we first placed management of federal real property on the High-Risk List.
GSA has worked with federal agencies to improve the reliability of federal real property data. In 2020, we reported that 67 percent of addresses in the Federal Real Property Profile public database were incorrectly formatted or incomplete./8
GSA took actions to improve its process for validating and verifying addresses in this database. In 2023, we found that over 98 percent of addresses were correctly formatted, but that location data errors continued.
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7 GSA often enters into leases for a "full term," split into an initial "firm" term and a "soft" or "non-firm" term. The firm term is the part of the leas not subject to termination rights, while the "soft" or "non-firm" term is the portion of the lease following the firm term, which is subject to termination rights. See, for example, U.S. Gen. Services Admin. Leasing Desk Guide, chs. 2, 2.1-13-2.1-14 (2022); U.S. Gen. Services Admin, Global Lease Template - GSA Template L100, 2 (2023).
8 GAO, Federal Real Property: GSA Should Improve Accuracy, Completeness, and Usefulness of Public Data, GAO-20-135 (Washington, D.C.: Feb. 6, 2020).
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Data Reliability
In August 2024, the Federal Real Property Council, an interagency council of which GSA is a member, published guidance to help federal agencies improve the quality of data they submit to the Federal Real Property Profile./9
The guidance instructs agencies to concentrate their initial data quality improvement efforts on data elements such as property type and property use because these elements are most easily verified with external information. GSA established a strategic initiative to improve real property data accuracy through data standards and management in its strategic plan for fiscal years 2022-2026. GSA also implemented a tool that alerts agencies to potentially incorrect location data in the Federal Real Property Profile database.
Moving forward, GSA should continue to take steps to fully implement our 2020 recommendation to help federal agencies improve their data reliability by implementing the data quality standards identified in the Federal Real Property Council's August 2024 guidance and ensuring street address information is accurate./10
As of November 2025, this recommendation was partially addressed.
We are currently completing an assessment of the reliability and utility of the Federal Real Property Profile. We plan to issue that report in early 2026.
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Building Condition
In the 2025 High-Risk Update, we added building condition as an area for concern due to large increases in the cost of addressing deferred maintenance in federal buildings. This backlog of maintenance and repair needs more than doubled in estimated cost from fiscal years 2017 through 2024, going from $170 billion to $370 billion. GSA's estimated backlog of total liabilities, including deferred maintenance, for the next 10 years is $26 billion, as of September 2025. GSA and Buildings Service tenant agencies are taking steps to improve building condition and configuration, but the continuing challenges led us to include the topic in the High-Risk update.
* In 2023, we determined that the spaces of federal agencies, many of which are tenants of GSA, are not well configured to meet modern office needs./11
If agencies continue to operate in poorly configured office buildings, they will continue to underuse space, spending unnecessary operating funds. Agencies ranked a shortage of funds in their budget to reconfigure space as the top challenge to increasing utilization of their headquarters buildings.
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9 Federal Real Property Council, Agency-Level Federal Real Property Profile Data Quality Improvement Program Guidance (August 2024).
10 GAO-20-135.
11 GAO-24-107006.
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* In 2023, we reviewed GSA and three other agencies and found they did not fully communicate the potential costs of maintenance backlogs to Congress./12
None of the agencies provided sufficient information in their financial and budget documents to explain how much of their backlog was for projects necessary to fulfilling agency missions. As a result, Congress and the public do not have a clear picture of the anticipated costs to address the deferred maintenance that may impact critical government functions. We recommended that GSA and three other agencies fully communicate repair needs to Congress and the public. As of November 2025, all four of these recommendations remained open; two of the four are partially addressed.
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GSA's Buildings Service Reduced Staff and Took Initial Steps to Implement a Reorganization as of October 2025
As of October 2025, the Buildings Service had taken several reorganization actions, such as reducing staff and developing its proposed new organizational structure. We have not confirmed with GSA how the recent lapse in appropriations affected its implementation timeline. We spoke to Buildings Service officials as part of an ongoing review on the organization and management of the Buildings Service, which was directed by a provision of the Thomas R. Carper Water Resources Development Act./13
Buildings Service officials told us that the agency initially planned to complete its reorganization in July 2025 but postponed implementation due to litigation and leadership changes. See Figure 1 for a timeline of events since January 2025 related to the Buildings Service's reorganization.
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12 GAO, Federal Real Property: Agencies Should Provide More Information about Increases in Deferred Maintenance and Repair, GAO-24-105485 (Washington, D.C.: Nov. 16, 2023).
13 Pub. L. No. 118-272, div. B, tit. III, Sec.2305, 138 Stat. 2992, 3225 (2025).
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Figure 1: Events Related to the Public Buildings Service's Reorganization, January 2025 through November 2025 Our past work has shown that agency reforms are more likely to be successful in refocusing and enhancing agency missions and achieving efficiency and effectiveness if leading reform practices are followed./14
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14 We use the term "reforms" to broadly include any organizational changes--such as major transformations, mergers, consolidations, and other reorganizations--and efforts to streamline and improve the efficiency and effectiveness of government operations. GAO, Government Reorganization Key Questions to Assess Agency Reform Efforts, GAO-18-427 (Washington, D.C.: June 13, 2018).
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Following these leading reform practices could help the Buildings Service ensure that its reorganization is a success.
We have work underway for the Congress which applies selected leading practices for agency reforms to the Buildings Service's reorganization to date. We plan to issue this work in the next few months. We selected these leading practices and associated key questions based on their relevance to Section 2305 of the Water Resources Development Act, which directed our work; the stage of the Buildings Service's reorganization; and relevance to administration priorities identified for Agency Reduction in Force and Reorganization Plans (ARRP) (see fig. 2)./15
We interpret the administration's ARRP guidance as indicative of the administration's priorities in conducting agencies' reorganizations. We do not plan to assess GSA's ARRP, but we assessed the Buildings Service's actions related to its own reorganization.
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Figure 2: Selected Leading Practices and Key Questions for Agency Reform 15OMB, Guidance on Agency RIF and Reorganization Plans (Washington, D.C.: Feb. 26, 2025).
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In addition, we plan to report on selected tenant agency views on the strengths and limitations of the organization of the Buildings Service that was in place as of December 31, 2024. We also will describe former Buildings Service Commissioners' views on both the strengths and limitations of the organization of the Buildings Service as of December 31, 2024, and their perspectives on potential improvements.
Chairman Perry, Ranking Member Stanton, and Members of the Subcommittee, this concludes my prepared statement. I would be pleased to respond to any questions that you may have at this time.
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Original text here: https://transportation.house.gov/uploadedfiles/12-11-2025_edpbem_hearing_-_heather_krause_-_testimony.pdf
Code of Support Foundation Veteran Support & Strategic Initiatives Specialist Benson Testifies Before House Veterans' Affairs Subcommittee
WASHINGTON, Dec. 21 -- The House Veterans' Affairs Subcommittee on Health released the following testimony by Caira Benson, veteran support and strategic initiatives specialist for the Code of Support Foundation, from a Dec. 10, 2025, hearing entitled "Putting Families First: Strengthening CHAMPVA for Survivors and Dependents." CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs.* * *
Chairman Miller-Meeks, Ranking Member Brownley, and Members of the House Veterans' Affairs Subcommittee on Health, thank you for inviting me to testify today. It is my honor ... Show Full Article WASHINGTON, Dec. 21 -- The House Veterans' Affairs Subcommittee on Health released the following testimony by Caira Benson, veteran support and strategic initiatives specialist for the Code of Support Foundation, from a Dec. 10, 2025, hearing entitled "Putting Families First: Strengthening CHAMPVA for Survivors and Dependents." CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs. * * * Chairman Miller-Meeks, Ranking Member Brownley, and Members of the House Veterans' Affairs Subcommittee on Health, thank you for inviting me to testify today. It is my honorto return to further the discussion on the inefficiencies and inequalities within the Department of Veterans Affairs' (VA) Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA).
At the Code of Support Foundation (COSF), we work with veterans and their families every day.
Our digital resource hub, PATRIOTlink, has served over 67,000 military community members to find needed supports for active duty servicemembers, veterans, caregivers, family members, and survivors. Every day our case management team works to connect active duty servicemembers, veterans, caregivers, family members, and survivors to local, regional, national, and government partners to achieve needed financial, social, physical health, and mental health supports to achieve stability. At COSF, we are in the records daily and in-tune with the needs of the military community.
But I am not just here as an employee of a veterans' non-profit. I am here as a caregiver, advocate, and a CHAMPVA user. I care for my husband who deployed twice to Iraq as a combat engineer between 2003-2006. My husband suffered multiple Traumatic Brain Injuries (TBIs) during his years in service; however, it would take until 2018 to formally diagnose those TBIs, despite a clear record of evidence. It would take another year to figure out his case was complicated by toxic encephalopathic process, most likely due to chemical exposures. Today, Eric is unable to work, needs full-time care, and is seen by a university neurological team due to the complexity of his case.
My five children and I enrolled in CHAMPVA in 2017 when my husband was awarded Permanent and Total status for his service-connected injuries. We breathed a sigh of relief knowing that we would have the safety net of health insurance for myself and our children, three of whom have needed specialty medical care through the years.
I testified in June of this year to this subcommittee about the nightmare navigating CHAMPVA has been for our family. Highlights of that nightmare include having to sign a $110,000 promissory note to ensure a needed hospitalization occurred in the chance that CHAMPVA refused payment, putting needed medical care on hold while waiting 6 months for preauthorization, being sent to collections when CHAMPVA claim payments didn't occur in a timely manner with one provider waiting over 27 months to receive payment for services.
CHAMPVA's "appropriate care" has felt anything but appropriate. Indeed, I still find our family's health needs are in arrears because we hesitate to use the complicated system which many in my area will not file.
I will not rehash my testimony given in June of this year - I know the committee is interested in how the situation looks for CHAMPVA users today, if the changes have been made, and how those changes have been received since my last testimony.
I commend VA for finally clearing the CHAMPVA application backlog. It is beyond time to process applications in real time. I also was overjoyed to hear that claims being submitted electronically are being paid quicker than previously.
Yet, even with that good news, the situation on the ground for CHAMPVA users remains murky.
While the application backlog is cleared, only two families I knew waiting on their decisions have received notifications of such to date.
Provider acceptance of CHAMPVA still remains a challenge. As a user myself, I had a medical complication this year which required me to travel over an hour for out-patient procedures as they were the nearest provider willing to file.
Even living in last year's fastest-growing county in the nation, I still cannot find a pediatrician who will file CHAMPVA for primary pediatric care for my children. I still pay out-of-pocket for my children's mental health providers as we have yet to find a provider who accepts CHAMPVA.
I know I am not alone. At COSF, one of our most frequent requests is mental health supports for dependents. We have multiple national and regional providers we work with to provide such supports for our clients. Five of these take TRICARE and refuse to take CHAMPVA. To quote one, "VA is too difficult to work with."
I feel those words deeply. Indeed, the difficulty of the process has made me personally stop filing for reimbursement. It is one more bureaucratic fight that caregivers like me do not need.
It is hard to place blame on providers for declining to accept and file CHAMPVA. Indeed, VA has made it difficult on providers filing claims and on users looking for providers. There is no known provider network or contracts outside of CHAMPVA's pharmacy component run by OptumRX.
I have talked to multiple providers who tell me there is no published fee schedule. While there is a "CHAMPVA acceptable pay rate," most providers do not know what that is until they are paid or until the patient receives their Explanation of Benefits (EOB). Most providers tell me they understand the acceptable rate is based on Centers for Medicaid & Medicare Services (CMS) rates, however pay can vacillate lower than the Medicare rate. By agreeing to file the claim, providers are barred from recouping any difference between the expected and paid rates.
Claims filing is messy, at best, with many providers still filing via paper claims through either the local VA Medical Center (VAMC) or CHAMPVA mail-in centers, depending on what current local advice is. Several providers I spoke to were unaware of the ability to file claims electronically.
Claim payment times are not guaranteed. Some claims are paid in weeks; some claims are paid in years. Payments for claims are delayed by filing codes that are, unbeknownst to the filer, not accepted by CHAMPVA causing denials, and requiring refiling. Delayed payment means that I routinely talk to CHAMPVA users who have their accounts sent to collections by providers due to the length of time between claim filing and claim payment. Indeed, I had two such discussions just last week.
I recently learned that VA now offers an app where family members can look up CPT codes to ensure services are covered. And I ask this - why am I, as a caregiver and dependent, required to do what every other insurance agency does through yearly contract updates to their provider network?
As they did in the Senate Veterans' Affairs Committee on May 21, 2025, VA has argued in the past that CHAMPVA is not an insurance product, it is a medical service. I remain steadfast - the industry, the federal government, and, more often than not, the VA treats CHAMPVA as an insurance product. For instance, like those covered by Medicaid, Medicare, or TRICARE, CHAMPVA enrollees may not take part in the drug cost reduction programs offered to patients on fixed or low incomes. If we choose to shop for insurance through the Health Care Marketplace, CHAMPVA enrollees are not eligible for either financial assistance nor advance premium tax credits. Every year, CHAMPVA enrollees receive a 1095-B attesting to the fact that CHAMPVA counts as minimum essential coverage under the Affordable Care Act. Finally, even VA states that CHAMPVA is only available to caregivers enrolled in VA's Program for Comprehensive Assistance for Family Caregivers (PCAFC) when they have no other health insurance. Thus, CHAMPVA identifies itself as an insurance plan when it offers proof of coverage and bars use of its plans in the face of other coverage.
CHAMPVA provides EOBs, approves and denies diagnostic codes, approves and denies medical treatment codes, and remits payment for enrollees to providers for approved services rendered by the medical community. CHAMPVA even has out-of-pocket maximums, deductibles, copays, and a medication formulary with tiered pricing. With the exception of the difficulty of use, CHAMPVA feels like every other insurance product I have ever received through an employer.
Indeed, the stance that CHAMPVA is not an insurance product is detrimental to veterans' families. At COSF, I recently walked a Permanent and Totally disabled veteran through enrollment for his wife into CHAMPVA. Prior to reaching out to us, this veteran had purchased insurance for his dependent through the Healthcare Marketplace, not understanding that CHAMPVA provided Patient Protection and Affordable Care Act, or ACA, complaint coverage.
I am positive we will hear today from VA that CHAMPVA is equivalent to TRICARE. Except, we users know it is not. TRICARE has contracted rates and a published fee schedule. TRICARE has mandated electronic filing and a clear appeals system. Treatments we know are covered under TRICARE are not always covered under CHAMPVA. Some other major differences:
* TRICARE offers TRICARE Young Adult allowing for coverage for dependents 18-21 (23 if in college). CHAMPVA coverage ends on the dependents 18th birthday unless enrolled in school.
* TRICARE offers coverage for stepchildren until the marriage ends in divorce.
CHAMPVA's stepchild coverage ends at 18 or when the child leaves the domicile, meaning a stepchild who changes their address to go to college could be dropped.
* TRICARE retirees may choose Federal Employees Dental and Vision Insurance Program (FEDVIP) which provides orthodontia coverage for dependents. CHAMPVA enrollees may only choose VA Dental Insurance Program (VADIP), where orthodontia was cut from the leading plan this year (DeltaDental).
Appeals for denied coverage under CHAMPVA are difficult to navigate as well. I recently had a caregiver call me because her child's recent claim for an ambulance ride during an anaphylaxis event was denied by CHAMPVA. It took over an hour of digging claims denial letters, EOBs, and CPT codes to understand what had happened - the denial was due to an inaccurate billing code which was billed under both an individual code and a packaged CMS code. CHAMPVA had paid the packaged code but denied the individual code, and we do not believe the CHAMPVA enrollee will be charged for the ambulance ride.
The denial letters listed three appellate structures: a supplemental claim or higher-level review through the Veteran Family Member Program (VFMP) appeals office or an appeal to the Board of Veterans' Appeals. Yet, the CHAMPVA website states there is a clinical appeal option that was not mentioned in the denial letter. How does a CHAMPVA user without extensive knowledge understand the next steps to appeal a denied claim? What was also glaringly missing? Something considered routine in today's world of denied insurance claims - an option for a third-party review for denied services.
In short, CHAMPVA remains a complicated mess for users. The historically large gap between enrollees and users validates this difficulty. In the 2024 congressional report, Health Care for Dependents and Survivors of Veterans (RS22483), the gap is evidenced across the decades with 2024 having over 700,000 enrollees but only 488,000 users.
While VA has announced positive steps to easing some of the known CHAMPVA problems, CHAMPVA fixes are far from complete.
CHAMPVA users need:
* Statutory change to bring parity to stepchildren;
* Statutory clarity to allow for a contracted provider network with clear, contracted CPT codes and published fees, similar to the modernization of CHAMPUS to TRICARE;
* Regulatory updates establishing a provider network with clear, contracted CPT codes and published fees;
* Mandated electronic claims filing; and
* Clarity in claims appeals processes, including a third-party review.
We also need you as a subcommittee to remember who receives CHAMPVA eligibility - TRICARE ineligible dependents of permanently and totally disabled veterans, survivors of those same veterans, and those enrolled in PCAFC with no other health insurance. In other words, our most vulnerable community members.
In VA's mission, "To fulfill President Lincoln's promise to care for those who have served in our nation's military and for their families, caregivers, and survivors," CHAMPVA is failing. As a community, we cannot continue to allow this egregious lapse of coverage for those who need it most.
We at COSF stand ready to work alongside VA and this Committee to help modernize CHAMPVA. I thank you for your time and attention, and I look forward to your questions.
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Original text here: https://docs.house.gov/meetings/VR/VR03/20251210/118739/HHRG-119-VR03-Wstate-BensonC-20251210.pdf
Acting Assistant Under Secretary for Health Llorente Testifies Before House Veterans' Affairs Subcommittee
WASHINGTON, Dec. 21 -- The House Veterans' Affairs Subcommittee on Health released the following testimony by Maria Llorente, acting assistant under secretary for health at the U.S. Department of Veterans Affairs Office of Integrated Veteran Care, from a Dec. 10, 2025, hearing entitled "Putting Families First: Strengthening CHAMPVA for Survivors and Dependents." CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs.* * *
Chairwoman Miller-Meeks, Ranking Member Brownley, and distinguished Members of the Subcommittee. Thank you for the opportunity to testify ... Show Full Article WASHINGTON, Dec. 21 -- The House Veterans' Affairs Subcommittee on Health released the following testimony by Maria Llorente, acting assistant under secretary for health at the U.S. Department of Veterans Affairs Office of Integrated Veteran Care, from a Dec. 10, 2025, hearing entitled "Putting Families First: Strengthening CHAMPVA for Survivors and Dependents." CHAMPVA is the Civilian Health and Medical Program of the Department of Veterans Affairs. * * * Chairwoman Miller-Meeks, Ranking Member Brownley, and distinguished Members of the Subcommittee. Thank you for the opportunity to testifytoday about the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), a vital program that provides health care coverage to eligible spouses, children, survivors, and caregivers of qualifying Veterans.
Joining me today is Mr. David Fennell. He is the Director of Veteran and Family Member Programs in the Office of Integrated Veteran Care.
CHAMPVA plays a critical role in supporting the families of Veterans who have made profound sacrifices in service to our Nation. My testimony today will provide an overview of the program's eligibility criteria, current operations, recent improvements, and opportunities for continued collaboration with Congress to ensure timely, efficient, equitable access to care.
Authorized under the United States Code, Title 38 Section 1781, CHAMPVA provides health care coverage to eligible spouses, surviving spouses, and children of Veterans who are permanently and totally disabled due to a service-connected disability, who died as a result of a service-connected condition(s), or who died while rated permanently and totally disabled from a service-connected condition(s). It also covers certain survivors of persons who died in the line of duty and certain Primary Family Caregivers under the Program of Comprehensive Assistance for Family Caregivers. To be eligible for CHAMPVA, the individual cannot be eligible for TRICARE.
As of November 2025, CHAMPVA provides health care coverage to more than one million beneficiaries. The program receives approximately 4,000 new applications per week. More than 90% of medical and pharmacy claims are processed electronically within days of receipt, ensuring timely reimbursement and continuity of care.
Under the leadership of Secretary Douglas A. Collins and thanks to recent reforms, the application backlog--previously exceeding 70,000 cases--has been eliminated. New applications are now processed in a matter of days. The appeals backlog has also been reduced from over 20,000 to approximately 1,000, with continued progress underway. These improvements reflect the Department of Veterans Affairs' (VA) commitment to Veteran-first service delivery, accountability, and efficiency.
Under the last Administration, CHAMPVA faced significant delays in application and appeals processing due to increased demand, staffing constraints, and reliance on legacy manual systems. Some applicants waited over 150 days for determinations.
Under Secretary Collins' leadership, VA implemented a two-pronged strategy: authorizing overtime for application processors and introducing enhanced process engineering and new automation to streamline workflows. These actions have assured timely access to benefits for eligible CHAMPVA beneficiaries.
VA is modernizing CHAMPVA operations to reduce bureaucracy and improve the user experience. In December 2025, we will complete the transition to a more automated application processing system, increasing efficiency and reducing manual workload. These efforts align with VA's broader digital transformation strategy and support the Department's goals of transparency, reduced administrative burden, and improved outcomes for Veterans' and VA beneficiaries.
Access to accurate provider information is another area of focus. Although CHAMPVA beneficiaries may see any provider who accepts CHAMPVA's allowable rates, VA acknowledges that beneficiaries may experience difficulty identifying participating providers or confirming whether a provider is accepting new patients. We are working to improve how provider information is presented and maintained, including updating publicly available guidance and strengthening communication with providers who bill CHAMPVA.
We appreciate the continued interest in strengthening CHAMPVA. Over the last few months, VA has made significant strides in eliminating backlogs, modernizing systems, and improving access. We remain focused on delivering timely, high-quality service to those who have sacrificed so much.
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Conclusion
This concludes my statement. We look forward to responding to any questions that you may have.
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Original text here: https://docs.house.gov/meetings/VR/VR03/20251210/118739/HHRG-119-VR03-Wstate-LlorenteM-20251210.pdf
Ex-U.S. Ambassador at Large for International Religious Freedom Brownback Testifies Before House Foreign Affairs Subcommittee
WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Sam Brownback, former U.S. Ambassador at large for international religious freedom, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan":* * *
In his November 18 meeting with President Trump, Saudi Crown Prince Mohammed bin Salman asked the President to intervene in the ongoing civil war in Sudan. It is a war that has produced what is currently the greatest humanitarian crisis on the planet. As many as 400,000 people already ... Show Full Article WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Sam Brownback, former U.S. Ambassador at large for international religious freedom, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan": * * * In his November 18 meeting with President Trump, Saudi Crown Prince Mohammed bin Salman asked the President to intervene in the ongoing civil war in Sudan. It is a war that has produced what is currently the greatest humanitarian crisis on the planet. As many as 400,000 people alreadykilled by war, disease and famine. An estimated 13 million people have been displaced.
President Trump has previously demurred from getting involved. It's another tough one that has a lot of history to it. Ethnic conflict, power struggle between military factions, Islamist and jihadist ideologies hanging around, international players on different sides and, seemingly, not much upside value to the U.S. That's where the superficial analysis is wrong.
Americans are at our best when we use our power selflessly. Our stature rises and the atmospheric support for ongoing US global leadership increases. This is a key moment for us as American leadership is being directly challenged by the Chinese Communist Party.
Add to that the trillion other reasons that the crown prince gave the president.
That being his pledge to invest $1 trillion into the United States. That's not chump change, but it won't automatically happen. Significant negotiations between leaders are done on a relational basis. There must be mutual trust. This isn't about dotting I's and crossing T's in a contract. This is about fulfilling and getting what you believe in your heart you agreed to.
There is an expectation game that must be matched or exceeded for the relationship to continue. Each leader must believe the other is fully committed to achieving what was agreed to in their hearts, not the details in signed agreements.
The recent meeting between the Crown Prince and the President will be the most significant between our two countries in decades if, in the coming months and years, our countries earnestly work to exceed the expectations of the other.
In that way, Sudan is a test. Will America really work and invest our authority and reputation to bring this humanitarian disaster to a conclusion? It's worth more than a trillion dollars to the U.S. economy.
And there is another, bigger issue: China is heavily courting Saudi Arabia.
The Saudis, with their resources and unrivaled status as defenders of Mecca and Medina, the two most holy sites for all Muslims, are the de facto leaders of the 56 Muslim-majority countries. We want the Saudis to be our key ally, not China's, otherwise more nations may fall under China's influence.
China is strategically pursuing Saudi Arabia in its effort to be the leader of the world and to undercut the US dollar as the world's reserve currency. This status has enormous benefits to our economy, a fact the Chinese recognize full well. The Chinese want to dethrone the dollar, and a key part of that strategy is to get the Saudis and other Gulf countries to trade in Chinese currency, not dollars. We cannot afford to let this happen.
Lives are at stake in Sudan, millions of them, but so is US global leadership and dollar supremacy.
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Original text here: https://docs.house.gov/meetings/FA/FA16/20251211/118745/HHRG-119-FA16-Wstate-BrownbackS-20251211.PDF
Human Rights Watch Deputy Washington Director Widdersheim Testifies Before House Foreign Affairs Subcommittee
WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Nicole Widdersheim, deputy Washington director of the Human Rights Watch, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan":* * *
Good afternoon.
Thank you for holding a briefing on the horrific ongoing crisis in Sudan and for inviting Human Rights Watch to participate today, the day after International Human Rights Day.
Human Rights Watch, an international NGO that works in over 90 countries, documents human rights violations ... Show Full Article WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Nicole Widdersheim, deputy Washington director of the Human Rights Watch, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan": * * * Good afternoon. Thank you for holding a briefing on the horrific ongoing crisis in Sudan and for inviting Human Rights Watch to participate today, the day after International Human Rights Day. Human Rights Watch, an international NGO that works in over 90 countries, documents human rights violationsand advocates for an end to those violations. Our research methodology is based on a broad range of sources, including direct interviews, field-based documentation, and verification of social media and geospatial information. To ensure our independence, we do not take any government funding. We have worked on Sudan for decades.
Prior to joining Human Rights Watch, I served as the Africa Director for the Sudans and Central Africa in the National Security Council during the first Trump Administration. Before that, I lived and worked in Sudan for 7 years, serving with USAID in Darfur during from 2005-2007, when the Bush Administration and US congress declared the events there a genocide. I was working in Darfur when Congressman Smith visited in 2005 and recall traveling to Mukjar, the scene of one of the worst killing events by the Janjaweed. I remember how the people lined the road from the landing strip to the town center to welcome a member of Congress, so grateful he travelled all that way to hear directly from them. I am so disappointed that, twenty years later, Sudan is still witnessing killing and atrocities on that scale today but without the same activism, action and empathy of the US government and congress.
April 2026 will mark three years since a brutal war broke out in Sudan. This conflict has primarily been a war of abuse and atrocities on civilians by the Rapid Support Forces (RSF) and the Sudanese Armed Forces (SAF). Multiple Human Rights Watch investigations illustrate Sudan's nationwide human rights crisis. This October, in Darfur, the RSF carried out mass atrocities in El Fasher, after an 18-month-long siege on a city, which was once a vibrant place that hosted many of the survivors of previous campaigns of attacks. El Fasher was the last city controlled by the SAF and their allies in Darfur. The RSF's takeover of the city resulted in the massacres that RSF fighters filming themselves committing, killing civilians and unarmed fighters, including children.
Human Rights Watch has previously documented similar atrocities by the RSF two years earlier in El Geneina, and Ardamata, where the RSF committed extrajudicial killings, rape, pillaging, as part of a campaign of ethnic cleansing against ethnic-Massalit and other nonArab people in 2023. Human Rights Watch concluded that the RSF had carried out crimes against humanity and widespread war crimes as part of campaign to commit ethnic cleansing. The context and the widespread, ethnically targeted nature of the killings, also raise the possibility that the killings were acts of genocide.
The list of civilian targeting and suffering is unrelenting and spreading across the country. In South Kordofan, RSF and allied militias committed war crimes against Nuba civilians with killings, gang rapes and the holding of women and girls in the context of sexual slavery, destruction of homes, and displacing tens of thousands people. In Khartoum, women and girls have faced widespread sexual violence--rape, gang rape, forced marriage, and child marriage--primarily at the hands of RSF fighters, with survivors denied medical care and justice. These abuses amount to war crimes and crimes against humanity.
The Sudanese Armed Forces (SAF) have also committed serious violations, notably indiscriminate airstrikes in Nyala, South Darfur, that killed and injured scores of civilians and destroyed hospitals and homes. Both warring parties are deliberately targeting civilians, cutting them off from food, engaging in sexual violence, and displacing them. The army and their allies have transformed areas under their control into mass detention sites, subjecting civilians to widespread detention and abuse, often purely on the basis of their political or ethnic identity or for having merely lived under RSF control.
These are forces that have continued to benefit from widespread impunity. These are forces who know they can get away with filming themselves perpetrating crimes. Right now, civilians in the Kordofan region are at imminent risk of further atrocities. The international community failed to listen to the warnings, heed the lessons of the violence from 2004-2013 in Darfur, and the coup of 2021. Civilians in Sudan, starting with civilians in western Sudan, need the US government to support ongoing documentation efforts and push for a civilian protection mission to prevent further harm in North Darfur, where thousands are still unaccounted for, and in Kordofan.
Sudan should not be viewed as an endless cycle of atrocities, and this suffering should not be normalized. I urge you today to take tangible steps in support of Sudanese civil society, starting with the local responders on the ground. The international response to this crisis has been--let me be honest--pathetic. Cycles of limited, energized and uncoordinated activities by the US government over two administrations have produced failed, isolated efforts. The African Union has been both sidelined from these diplomatic efforts like the Jeddah process and recent "Quad" (US, Egypt, Saudia Arabia, UAE) and have also "admired" the crisis in numerous PSC meetings and discussions over the last two and half years, failing to protect civilians or hold the parties accountable. Efforts at the bilateral, regional and international level have routinely cut out civilian leadership, failed to stem the violence or protect civilians, nor get the massive amount of life saving assistance needed into the country.
There has been little communication from the current administration with human rights community on the strategy on Sudan. From the outside it appears that the Quad does not have a clear strategy for stopping the attacks and human rights violations on the civilian population nor protecting them from the warring actors. The UN humanitarian chief Tom Fletcher recently visited parts of Sudan and has demanded unfettered access for humanitarian assistance, above all to the most isolated and in need. And presently, the African Union has yet to use the full weight of its mandate to respond to the crisis. In Addis Ababa, the AU Peace and Security Council should urgently move from expressions of "deep concern" to concrete actions that confront the actors fueling and financing this war.
Countries in the region supplying arms, providing political cover, or enabling the RSF and SAF to continue attacking civilians should stop. The PSC should adopt time-bound decisions, including activating the AU sanctions framework against individuals and states facilitating the violence, mandate transparent reporting on external support to the warring parties, and direct the Commission to accelerate implementation of its Sudan Humanitarian and Security Response Plan. The AU's continued silence on those enabling the conflict is undermining its credibility and costing lives; decisive action from Addis is urgently needed to protect civilians and restore regional leadership in ending this war.
The United States government is a major actor in this situation and can do much more than it has. The U.S. Congress has played a monumental role in the past, exposing atrocity crimes, elevating the Sudanese civilian voice and survivor needs, appropriating life-saving assistance, pushing Republican and Democratic administrations alike to hold perpetrators accountable as well as guiding and overseeing US foreign policy for the country. Sadly, in my 27 years working on Sudan and South Sudan crises, I have never seen the US congress so unengaged on the region. Yes, public condemnations can signal to the perpetrators that the US is watching, but social media posts and press releases are simply not enough. There is so much more you can do to help the Sudanese people in their pursuit to survive, be safe from violence, and work toward a civilian-led, rights-respecting democratic Sudan.
We urge the United States to:
1) Nominate the congressionally required Presidential U.S Special Envoy for Sudan. Require that this official works with the Sudanese people, remains transparent and uncorrupted by personal or private interests of conflict, and regularly briefs and updates the Congress and the public.
2) Clearly communicate to the Administration that Congress supports deployment of a UN Security Council-mandated mission to protect civilians and ensure humanitarian aid is delivered. It can start small, deploying where civilians in need of urgent protection are gathering, but it needs to start as soon as possible. History has shown that a small contingent of well-trained and well equipped troops can do a lot of good in a short period where civilians are under immediate risk.
3) Call on all countries to comply with the UN Security Council arms embargo and for the parties to the conflict to allow humanitarian access. Specifically call on US allies stop violating the UN Arms Embargo on Darfur and cease actions that enable more targeting of civilians by the parties to the conflict.
4) Insist that the Trump Administration put Sudanese civilians first in all US-led or support efforts to bring an end to violence against civilians. A deal between the two parties in the conflict alone has failed before, the only hope for a safe and rights-respecting Sudan is independent civilian government.
5) Authorize and appropriate robust US funding to respond to the massive humanitarian crisis in Sudan and in particular increase the assistance to the Sudanese Emergency Response Committees. These local human rights organizations and other local civilian actors working night and day to save their country. Specifically appropriate resources to also fund survivor-centered medical and psychosocial support, and reparations programs victims of sexual violence, torture, ethnic cleansing. Support US funding programs that aim to seek justice and accountability for survivors. Pay the UN in full for what the US owes, for the regular and peacekeeping budgets and other important UN programs that require voluntary funding.
6) Impose targeted sanctions--including asset freezes and travel bans--on RSF and SAF leaders responsible for abuses. The US has issued some sanctions, but more is needed to press the actors to stop targeting civilians.
7) Push the Administration to reinstate temporary protective status and refugee resettlement for Sudanese civilians fleeing persecution and human rights violations, including ethnic cleansing.
8) Support the UN-Fact finding Mission and encourage other countries and the parties to the conflict to do the same.
9) Recall its support across administrations for the critical work of the International Criminal Court in Sudan and call for the rescission of US ICC-related sanctions that threaten to undermine the court's work globally. In October, ICC judges handed down a landmark conviction of a former Janjaweed leader for 27 counts of war crimes and crimes against humanity committed in Darfur in 2002-2003. The court's Office of the Prosecutor has ongoing investigations of today's atrocities in the region. Without justice there will only be further generations of victims. The US should support the ICC's work, including the expansion of the court's mandate across Sudan, and it should play an active role in seeking a comprehensive approach to accountability in Sudan.
10) Consider drafting legislation that combines these recommendations to assist and guide the administration policy and approach to the crisis.
Congress can play a pivotal role in ensuring that the US government's policy is clear, with coordinated measures that prioritize protection of civilians, justice, and humanitarian relief with concerted engagement and pressure on the parties to the conflict. With this approach, you can help break the cycle of mass atrocities and help the Sudanese people begin to recover, be safer and hopefully have a viable chance to govern their own country
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Original text here: https://docs.house.gov/meetings/FA/FA16/20251211/118745/HHRG-119-FA16-Wstate-WiddersheimN-20251211-U2.pdf
Samaritan's Purse VP Isaacs Testifies Before House Foreign Affairs Subcommittee
WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Ken Isaacs, vice president of programs and government relations for Samaritan's Purse, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan":* * *
Chairman Smith, Ranking Member Jacobs, Committee members, and fellow guests.
Thank you for the opportunity to share my experience and thoughts on the crisis in Sudan.
A stable and functioning Sudan is in the national interest of the United States. A number of foreign states are already ... Show Full Article WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following testimony by Ken Isaacs, vice president of programs and government relations for Samaritan's Purse, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan": * * * Chairman Smith, Ranking Member Jacobs, Committee members, and fellow guests. Thank you for the opportunity to share my experience and thoughts on the crisis in Sudan. A stable and functioning Sudan is in the national interest of the United States. A number of foreign states are alreadydeeply involved in this conflict. Their involvement underscores that Sudan is not a contained internal war, but a geopolitical arena. These actors include the United States, the United Arab Emirates, Egypt, Saudi Arabia, Qatar, Turkey, Iran, Russia, China, Chad, South Sudan, Ethiopia, Eritrea, Kenya, and Libya. This involvement is noted not to assign blame, but to demonstrate the scale of geopolitical investment in Sudan's outcome.
Regional actors are coalescing in Sudan, each with a vested interest. Sudan lies at the intersection of the Red Sea corridor, the Nile basin, the Sahel, and the Horn of Africa. Instability here is not contained. It moves - through arms flows, migration routes, extremist recruitment, gold and resource extraction, and maritime positioning. Ending this war will not be achieved by isolating one actor but by coordinated restraint among many.
Since 1989, Sudanese politics have been dominated by ideological positioning, with roots in the Muslim Brotherhood. The National Congress Party (NCP), led by Omar al-Bashir, took control of the government and allowed the Brotherhood-linked NCP to grow from being a political party into the ideological spine of a militarized Islamist state, with a violent footprint across the country. As a perpetrator of this violence, Bashir created the Janjaweed militia in the early 2000's as a tool to control insurgency in Darfur. In 2013, the NCP formalized the Janjaweed by presidential decree into the paramilitary group, the Rapid Support Forces (RSF)./1
In 2019, after months of mass civilian protests demanding an end to Islamist authoritarian rule, Sudan's military removed President Omar al-Bashir and formed a transitional government with civilian leaders. This transitional body collapsed in October 2021 when military leaders staged a coup, briefly detaining Prime Minister Abdalla Hamdok and dissolving the civilian government./2
In April 2023, this alliance fractured and Khartoum dissolved into open conflict. The current civil war has seen the RSF position itself against the State that created it. It is crucial to keep these historical and ideological roots in mind; both the SAF and the RSF were created out of the same ideological fabric that is woven deeply into Sudanese power structures. It is not just a fight between two generals; it is a legacy of entrenched Islamist political networks that now stand at odds.
As a result of the conflict, an estimated 30.4 million people, roughly two-thirds of the Sudanese population, need humanitarian assistance./3
Twenty-one million people face acute food insecurity, 6.5 million are in, or near, famine conditions./4
Famine has been declared in different locations across Sudan three separate times over the past two years, with the latest declaration occurring in November; this time in El Fasher, in Darfur and Kadugli, in South Kordofan - with twenty additional locations considered at risk of famine./5
Samaritan's Purse has now twice been involved in the data collection that contributed to the famine determinations in the Kordofans.
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1 https://www.britannica.com/topic/Rapid-Support-Forces
2 https://www.congress.gov/crs-product/IF12816
3 https://www.globalissues.org/news/2025/02/14/39092
4 https://www.ipcinfo.org/ipc-country-analysis/details-map/en/c/1159787/?iso3=SDN
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I spoke before this same committee in May of this year about the humanitarian situation in Sudan. Then, we discussed the severity of the crisis, the desperation of the people, and what the United States could do to reduce the human suffering. Today, the humanitarian situation in Sudan has deteriorated further. I showed this committee photos of children suffering from severe malnutrition - many of them likely no longer alive. I have countless more photos. The tragedy these children have been forced to endure should challenge our collective conscious.
In July, Samaritan's Purse began collecting data on the nutrition and food security status of families fleeing Kadugli into areas of South Kordofan under SPLM-N control. Malnutrition rates were severe, with approximately 30% of children under 5 suffering from either moderate or severe malnutrition, and over 60% of households stating they had no food. There is no question that the famine in Sudan is real and widespread.
Sudan has vast natural resources, with incredible untapped agricultural potential. With access to the Red Sea, the Nile River, gold and oil reserves, Sudan is more than capable of supporting its population if governance is established. Sudan is not a state in need of perpetual outside support. What is happening today in Sudan is a manmade famine. Humanitarian assistance alone cannot solve this crisis, it will require political will from nations and people; including those sitting in this room.
Over the past six months, waves of displacement have continued. Darfur and the Kordofan's represent the frontlines of the conflict today, each hosting millions of displaced people. Sudan Liberation Army (SLA) controlled areas of Darfur, and Sudan People's Liberation Movement-North (SPLM-N) controlled areas of South Kordofan have emerged as safe havens for people fleeing violence and hunger in El Fasher and Kadugli./6
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5 https://www.ipcinfo.org/fileadmin/user_upload/ipcinfo/docs/IPC_Sudan_Acute_Food_Insecurity_Sep2025_May2026_Special_Snapshot.pdf
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Given the historical marginalization of these areas, the question of why people are choosing to flee there should be asked. I can tell you with certainty that it is not because there is more humanitarian assistance available. These pockets of stability, which have been sustained under immense pressure, are of critical national importance.
The humanitarian situation in Sudan is beyond comprehension - aptly named the world's largest humanitarian crisis./7
Most recently in El Fasher, reports state that as many as 60,000 people were brutally murdered./8
The country has descended into an intractable war that has no military solution - except for the continued loss of civilian life. The SAF and the RSF must be compelled to accept a cease-fire.
The first and overriding priority should be to stop the war. The fastest way to accomplish this is to pressure both sides to accept a cease-fire. In order for it to be successful, the cease-fire requires monitoring by a credible international body. This body needs the broad political support and authorities necessary to require both sides to abide by the terms of the cease-fire utilizing political and economic leverage.
The second requirement is humanitarian access. Sudan's civilians are not simply caught in the crossfire; they are being starved by the collapse of all of the economic and social mechanisms they normally rely on. Aid corridors must open and confidently provide safe passage into all of Sudan, including Darfur, Kordofan, Khartoum, and Jazirah without taxation, diversion, or interference. Humanitarian access cannot be optional. It must be negotiated and guaranteed at the beginning of the cease-fire.
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6 https://dtm.iom.int/sudan
7 https://www.congress.gov/crs-product/IF12816
8 https://uk-crime.co.uk/sarah-champion-2025-speech-on-gaza-and-sudan/
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Attacks on aid convoys and humanitarian workers must stop. Humanitarian pathways from Chad have recently been targeted by drone strikes, with the Adre crossing being targeted as recently as Friday./9
It is accurate and necessary to recognize that an enormous amount of humanitarian assistance is needed, but more importantly, the war must stop. Ending the war is the only thing that will quickly bring about improvement in the humanitarian condition of the people. As diplomatic conversations continue, a humanitarian ceasefire would allow life-saving interventions to reach desperate Sudanese. These interventions will require funding and political support. Helping the people of Sudan is not only a moral decision, it is in America's best interest.
Thirdly, a civilian transitional authority must be reconstituted. It cannot be symbolic, and it should be drawn from across Sudan. As Sudanese society is multi-ethnic, a wider representative civilian body is required for nationhood. Both primary forces in this war emerged from the same security architecture. That system fused governance from ideological patronage and armed structures. The people of Sudan want this legacy corrected. Sudan will not move forward if its political identity and security apparatus remain defined by structures born of ideological brutality.
Sudan requires a civilian constitutional structure that protects freedom of worship while ending the conflation of armed power with religious identity. The state should not use religion to dominate and exclude. A state in which Sudanese may freely worship is only possible if the political authority is accountable to civilians, not to military command and theological claim.
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9 https://3ayin.com/en/adre-2-/
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The United States is served well by a clear policy that prevents flirting with the ideological and organizational network of the Muslim Brotherhood. There has historically been a pragmatic tolerance of extremism in Sudan. For some, the continued presence of extremist entities has been exploited as a means to reduce the influence of Sudan; to keep the country in a perpetual state of chaos, easing outside access to Sudan's vast natural resources. The tragic events of 9/11 were planned and executed by Osama Bin Laden, who lived in Khartoum until 1996./10
The bombing of U.S. embassies in Dar Es Salaam, and Nairobi were reportedly planned and executed from Khartoum. In 1987, Sheikh Ahmed Yassin, a Palestinian cleric of the Muslim Brotherhood, founded a local political branch of the Muslim Brotherhood in Gaza called, Hamas./11
The Muslim Brotherhood is an entity with well documented connection to the death of Americans from which emerged Al-Qaeda, Hamas, and other armed movements whose destabilizing consequences now reach from Gaza to the Red Sea. President Trump and Secretary of State Rubio are to be applauded for recognizing the dangers of the Muslim Brotherhood and moving to declare many of their chapters as foreign terrorist organizations./12
Sudan can be stable and functioning with a civilian constitutional framework where faith is protected and politics are not defined by military force. A stable, functioning Sudan is not a favor to the world, it is an American interest. A stable Sudan will make America safer, stronger and more prosperous. I want to thank President Trump and Secretary of State Rubio for their attention to this matter. I also want to thank the members of the Quad for their efforts; The United States, The United Arab Emirates, Saudi Arabia and Egypt. This war will not produce a victor. The war must end.
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10 https://www.fbi.gov/history/famous-cases/osama-bin-laden
11 https://www.cfr.org/backgrounder/what-hamas
12 https://www.whitehouse.gov/fact-sheets/2025/11/fact-sheet-president-donald-j-trump-begins-process-to-designate-certain-muslim-brotherhoodchapters-as-foreign-terrorist-organizations-and-specially-designated-global-terrorists/
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Original text here: https://docs.house.gov/meetings/FA/FA16/20251211/118745/HHRG-119-FA16-Wstate-IsaacsK-20251211-U1.pdf
Ex-U.S. Commission on International Religious Freedom Chair Perkins Testifies Before House Foreign Affairs Subcommittee
WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following written testimony by Tony Perkins, former chair at the U.S. Commission on International Religious Freedom, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan":* * *
Chairman Smith, Ranking Member Jacobs, and Members of the Subcommittee, thank you for the opportunity to testify today.
My name is Tony Perkins. I served on the U.S. Commission on International Religious Freedom from 2018 to 2022, including as chair and vice chair, and I currently ... Show Full Article WASHINGTON, Dec. 19 -- The House Foreign Affairs Subcommittee on Africa released the following written testimony by Tony Perkins, former chair at the U.S. Commission on International Religious Freedom, from a Dec. 11, 2025, hearing entitled "Stopping the Bloodshed: U.S. Response to Crimes Against Humanity in Sudan": * * * Chairman Smith, Ranking Member Jacobs, and Members of the Subcommittee, thank you for the opportunity to testify today. My name is Tony Perkins. I served on the U.S. Commission on International Religious Freedom from 2018 to 2022, including as chair and vice chair, and I currentlyserve as president of Family Research Council in Washington, D.C.
We care deeply about protecting and promoting fundamental human rights, chief among them religious freedom. Research has shown that higher levels of religious freedom are associated with greater social peace and, in many cases, stronger economic performance/1--things desperately needed in war-torn Sudan.
When I served on USCIRF, I participated in the most recent USCIRF government visit to Sudan in 2020. During that visit, I met with transitional Prime Minister Abdalla Hamdok, who was taking necessary steps to improve religious freedom. Those reforms led to Sudan being removed from the U.S. list of "countries of particular concern" (CPC) after 20 years. Sadly, the progress we witnessed then has collapsed, and ethnic and religiously driven violence has once again engulfed the country.
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Conditions in Sudan
Sudan is currently making headlines due to horrific violence, but the reality is that the country has experienced conflict throughout most of its history since gaining independence in 1956. The danger in moments like this is to treat the crisis as something new, instead of addressing the deeply-rooted issues that have fueled decades of instability. We do not need peace in name only; we need a peace that deals honestly with those underlying causes.
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1 Brian J. Grim and Roger Finke, The Price of Freedom Denied (Cambridge University Press, 2011); Brian J. Grim, "Is Religious Freedom Good for Business?: A Conceptual and Empirical Analysis," Interdisciplinary Journal of Research on Religion, no. 10 (2014), https://www.religjournal.com/pdf/ijrr10004.pdf.
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While the Rapid Support Forces (RSF) are rightly condemned for their atrocities, the truth is that both major armed factions carry responsibility for violence. The Sudanese Armed Forces (SAF) have engaged in their own brutal acts, including killings of civilians and beheadings./2
Neither group represents a path toward long-term stability or human rights.
Many may recall Omar al-Bashir, who ruled Sudan from 1989 to 2019. He created the Janjaweed militias--the same forces that later evolved into today's RSF--as instruments of jihadist ethnic cleansing against Christians and African tribes. At that time, the RSF and SAF worked together.
It was only after the coup against al-Bashir that they started fighting each other./3
The Islamist ideology shaping both the RSF and the SAF is a major driver of Sudan's continuing violence.
Although the RSF and SAF are in conflict with each other, they have a common enemy in Christians, whom they do not see as fitting their Islamic vision for Sudan./4
Churches have been targeted by both the RSF and SAF./5
Christians have been denied food aid and told, "Unless you leave your Christianity, no food for you."/6
They, along with all the other people of Sudan caught in the crossfire, are the true victims here.
Regional actors are exacerbating this conflict. While the United Arab Emirates' support of the RSF is in the news, other nations have their hands in Sudan as well to wield influence (Egypt, for example, is the primary backer of the SAF)/7 and extract resources. Iran, Egypt, and Turkey have supplied drones to the SAF./8
Russia initially backed the RSF in exchange for access to gold, but then switched sides. Just a few weeks ago, it was reported that the Sudanese government offered Russia its first naval base in Africa in Port Sudan./9
The ongoing refugee crisis, along with internal displacement and mass starvation, remain significant challenges. Nearly 12 million people are internally displaced, and over four million people have left the country. According to the UN Refugee Agency, many of these refugees have gone to Chad, Egypt, and South Sudan./10
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2 UN Human Rights Council, Sixtieth session, "Sudan: A War of Atrocities - Report of the Independent International Fact-Finding Mission for the Sudan," A/HRC/60/22, September 5, 2025, https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/ffm-sudan/a-hrc-60-22-auv.pdf.
3 "Civil War in Sudan," Center for Preventive Action, last updated November 6, 2025, https://www.cfr.org/globalconflict-tracker/conflict/power-struggle-sudan.
4 Paul Tilsley, "'God have mercy on us': Sudan's Christians struggle to survive under siege," Fox News, last updated September 14, 2025, https://www.foxnews.com/world/god-have-mercy-us-sudans-christians-struggle-survive-undersiege.
5 "Briefing: Attacks on places of worship," CSW, November 17, 2025, https://www.csw.org.uk/2025/11/17/report/6662/article.htm.
6 Tilsley, "'God have mercy on us': Sudan's Christians struggle to survive under siege."
7 Youseif Basher, Weam Al Sharif, and Giorgio Cafiero, "Sudan's Armed Conflict and Humanitarian Crisis," Carnegie Endowment for International Peace, May 11, 2023, https://carnegieendowment.org/sada/2023/05/sudansarmed-conflict-and-humanitarian-crisis?lang=en.
8 Benoit Faucon, "Sudan Offers Russia Its First Naval Base in Africa," The Wall Street Journal, December 1, 2025, https://www.wsj.com/world/africa/sudan-offers-russia-its-first-naval-base-in-africa-0748e810.
9 Ibid.
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Chad and South Sudan now face food shortages themselves and do not have the infrastructure to sustain the inflow of people. The Nuba Mountains area, in particular, is in need of more aid that is free from the interference of the RSF and SAF./11
With more than 150,000 people dead from the past few years of conflict, and with the death toll only continuing to rise, we must take action./12
Religious Freedom and CPC Status
Sudan was designated a "country of particular concern" for religious freedom from 1999 to 2019. After the 2019 transition, the government enacted meaningful reforms: repealing apostasy laws, increasing protections for minorities, and partnering with U.S. institutions. Because of this, Sudan was removed from the CPC list.
But Sudan has now fallen back into a conflict driven in part by the very same Islamist structures that persecuted Christians and other religious minorities for decades. The safeguards once put in place have eroded.
Given this massive backsliding, the U.S. should reimpose the CPC designation and make clear that it will only be removed when we see verifiable improvements in religious freedom and human rights on the ground.
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Policy Recommendations
1. Utilize the CPC designation and similar tools to advance American values in discussions with Sudanese governing factions and regional actors.
2. Strengthen federalism.
A centralized government controlled by a single faction guarantees continued bloodshed.
Regional governance structures are essential.
3. Ensure direct humanitarian access to the Nuba Mountains without interference from the SAF and RSF. Aid to other regions must be ensured as well.
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10 "Sudan Situation," UNHCR, accessed December 10, 2025, https://data.unhcr.org/en/situations/sudansituation.
11 Daniel P. Sullivan, "The Nuba Mountains: A Window into the Sudan Crisis," Refugees International, August 22, 2024, https://www.refugeesinternational.org/reports-briefs/the-nuba-mountains-a-window-into-the-sudan-crisis/.
12 Natasha Booty, Farouk Chothia, and Wedaeli Chibelushi, "A simple guide to what is happening in Sudan," BBC, November 13, 2025, https://www.bbc.com/news/articles/cjel2nn22z9o.
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4. Partner with Sudan's churches.
Despite decades of conflict, local churches remain one of the few stabilizing forces serving communities in need.
Five years ago, I stood in Khartoum, at the very place where the Blue Nile and White Nile converge to form the great river that flows north through Africa. Each tributary is distinct-- different origins, different paths--but they meet at a single point that shapes everything downstream.
Sudan is standing at just such a confluence today. Its history--marked by conflict, repression, and resilience--meets a present moment filled with both danger and opportunity. What flows from this convergence will shape not only Sudan's future but also the stability of the entire region.
My hope is that the United States will help ensure that what flows forward is justice, peace, and genuine freedom for all the people of Sudan.
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Original text here: https://docs.house.gov/meetings/FA/FA16/20251211/118745/HHRG-119-FA16-Wstate-PerkinsT-20251211.pdf
Homeland Security Secretary Noem Testifies Before House Homeland Security Committee
WASHINGTON, Dec. 19 -- The House Homeland Security Committee released the following testimony by Homeland Security Secretary Kristi Noem from a Dec. 11, 2025, hearing entitled "Worldwide Threats to the Homeland":* * *
Chairman Garbarino, Ranking Member Thompson, and distinguished Members of this Committee:
Thank you for the opportunity to appear before you today to discuss the wide range of threats the Department of Homeland Security (DHS) is working to protect against, at home and around the world.
Just weeks ago, we came face to face with the evil that this nation faces every day. The day ... Show Full Article WASHINGTON, Dec. 19 -- The House Homeland Security Committee released the following testimony by Homeland Security Secretary Kristi Noem from a Dec. 11, 2025, hearing entitled "Worldwide Threats to the Homeland": * * * Chairman Garbarino, Ranking Member Thompson, and distinguished Members of this Committee: Thank you for the opportunity to appear before you today to discuss the wide range of threats the Department of Homeland Security (DHS) is working to protect against, at home and around the world. Just weeks ago, we came face to face with the evil that this nation faces every day. The daybefore Thanksgiving, a terrorist attacked our National Guardsmen who were stationed in Washington D.C., murdering Specialist Sarah Beckstrom and leaving Staff Sergeant Andrew Wolfe fighting for his life. That same week, we saw another terrorist threat from another Afghan national who also entered the United States under Operation Allies Welcome. This coward was planning to carry out a bombing in Fort Worth, Texas.
These are two examples of the many threats we face, and the threats that DHS works every day to prevent and stop.
Under President Trump's leadership, DHS is securing our borders, restoring the rule of law, and protecting the homeland. DHS is aggressively eliminating transnational organized crime in our communities, combating illegal immigration and bringing sanity back to our immigration system. We are combatting terrorists at our borders and beyond.
We are preventing cyberattacks from both state and non-state actors. We are holding hostile enemies accountable for undermining our economy, including those who steal our most sensitive technologies and intellectual property to use them against us.
The Trump Administration has made tremendous progress on these fronts and continues to put the American people first.
I am honored to lead the hardworking men and women of the Department of Homeland Security, who are entrusted with the mission of keeping America, its people and homeland, safe and secure. They are true American patriots, who wake up every day, determined to carry out the mission of protecting their fellow citizens from threats at home and abroad. Our world is experiencing increasing instability and complex threats. The Department of Homeland Security's unwavering commitment and dedication to protecting our homeland is vital to both our national security objectives and the continued public safety of the American people.
The threats our nation faces continue to grow. It is clear these threats demand that we work on all these fronts to ensure American resilience and preparedness. We must remain focused on combating not only the dangers in front of us today, but also what we will face tomorrow.
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Threats
Threats from Four Years of Immigration Chaos
For four years, the Biden Administration allowed millions to enter this country illegally and without basic vetting. We are now facing the consequences of this exploitation and erosion of our immigration system, and complete disregard for the law. We have seen terrorist attacks and heinous crimes committed against American children and families by criminal illegal aliens who should have never been allowed into this country. This Administration is taking common sense steps to make sure we know who is in our country and to remove dangerous criminals.
After the collapse of Afghanistan, the Biden Administration paroled tens of thousands of Afghan nationals into the country and entered into the 2023 Ahmed Court Settlement, which forced U.S. Citizenship and Immigration Services (USCIS) to adjudicate almost 20,000 asylum claims on an expedited basis. On day one, the Trump Administration took action, shutting down the Afghan refugee resettlement program and signing Executive Order 14161 to aggressively vet the millions of foreigners that the Biden Administration allowed into the country.
Following the recent terrorist attack on our National Guardsmen, the Trump Administration took immediate action once again to counter the threats to the American people.
We paused all immigration processing requests relating to Afghan nationals to allow for additional review of security and vetting protocols. DHS has also placed a hold on all asylum decisions, regardless of nationality, pending a comprehensive review to make sure every alien is vetted and screened to the maximum degree possible.
Given the severe lack of vetting in the prior Administration, DHS has halted any new or pending benefit requests, including adjustment of status, green cards, or travel documents, for aliens from countries listed in President Trump's Proclamation 10949. USCIS will also begin a comprehensive re-examination for all approved requests for individuals from these high-risk countries that entered the United States on or after January 20, 2021.
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Border Security
President Trump's strong and effective border and immigration policies have resulted in the most secure border in the history of the United States with 7 straight months of zero releases at the border and total nationwide encounters down 92% from their peak under the Biden
Administration. These policies have significantly disrupted illegal immigration at the U.S.Mexico border, creating and maintaining a historic decline from the record high illegal immigration driven by the Biden Administration's disastrous open border policies.
Transnational criminal organizations, cartels, and gangs operating inside and outside of the U.S. still seek to flood our communities with drugs, violent crime. They endanger the safety of the American people. These groups are highly adaptive, constantly using new tactics to try to sidestep law enforcement and profit from their heinous actions. They aim to corrupt or coerce our partner nations' security forces and undermine their rule of law. We have made it clear to these transnational criminals that any attempt to profit from harming American communities will be met with force.
While increased law enforcement actions have decreased the amount of drugs coming into our communities, our work is not complete. Far too many Americans are dying from fentanyl poisoning. Illegal drugs smuggled into the United States by narcoterrorist cartels are still likely to kill tens of thousands of Americans in the coming year. The Mexican drug cartels, which supply most of the illicit drugs found in the United States, continue to find ways to evade law enforcement and maintain their lucrative drug smuggling.
Transnational organized crime groups, including Mexico's Sinaloa, New Generation Jalisco, and other drug cartels create instability and harm U.S. interests. This Administration has acted by designating over a dozen of them as Foreign Terrorist Organizations, which has allowed the federal government to freeze their assets, deny their travel, and prosecute their members. In response to this increased pressure from the United States, Foreign Terrorist Organizations will likely respond by taking advantage of alternative financial technologies and underground banking systems, so that their illegal drug and human smuggling operations avoid detection.
As U.S. and Mexican law enforcement increase pressure on illegal cross-border activity, we expect transnational criminal organizations in Mexico to ramp up their efforts to procure firearms in the United States and smuggle them into Mexico. Mexican transnational crime groups increasingly use commercially available Unmanned Aircraft Systems to surveil U.S. law enforcement and conduct cross-border smuggling operations. Mexican cartels also have the capability to use weaponized drones and are currently using them against Mexican security forces and rival crime groups.
It is likely that transnational criminal organizations based outside of Mexico will attempt to exploit the U.S.-Mexico border and engage in criminal activity within the United States. We anticipate that both the Salvadoran gang MS-13, and the Venezuelan gang Tren de Aragua will continue their attempts to smuggle humans and drugs across our Southern border. These criminals are using new and adaptive tactics to circumvent the law, allowing them to continue waging their illegal and violent terror campaign on America.
We must continue to implement President Trump's policies to enforce the law, stop criminals from targeting and entering our nation, and further enhance the security of our borders.
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Critical Infrastructure Security
U.S. critical infrastructure faces a growing threat landscape, largely driven by the impact of cyberattacks from bad actors and cybercriminals.
U.S. networks are routinely targeted for espionage and intelligence collection. Threat actors may aim for credentials of U.S. corporate and government employees or exploit vulnerabilities in U.S. information technology networks to steal sensitive information for strategic, political, military, or economic advantage. These cyber campaigns are often difficult to identify and can remain undetected for years. We see no signs of these threats slowing down.
Financially motivated cybercriminals present a persistent and costly threat to U.S. critical infrastructure systems and the American public. Thanks to the leadership of President Trump, we have seen our enemies changing their behavior following successful cyber operations, such as the largest single currency seizure in Secret Service history, recovering over $225 million of cryptocurrency from scammers targeting Americans.1 We have also observed how available artificial intelligence platforms have enhanced the efficiency and scale of cybercriminal operations.
Terrorists and criminals with a variety of motivations continue to incite, and occasionally conduct, physical attacks against a range of targets. This past year, they mobilized against major commercial sites, government offices, transportation gateways, energy systems, and healthcare facilities. Critical infrastructure targets are often selected based on opportunistic factors, such as accessibility or the ability to wreak widespread havoc.
Unauthorized use of Unmanned Aircraft Systems over critical infrastructure is a rapidly growing threat vector due to how easily they can be obtained. They can also be difficult to detect and deter.
Despite these challenges, DHS is committed to comprehensive approach - working with state, local, tribal, territorial, and private sector partners - to protect U.S. critical infrastructure and ensure these vital systems and assets are secure and resilient.
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Public Safety and National Security
American citizens are increasingly under threat from assassination attempts, intimidation tactics, and violence perpetrated by our adversaries, radical Islamist extremists, and radical Left-wing terrorists. These bad actors seek to undermine public trust, instill fear in Americans and destabilize the institutions that safeguard our national security. These individuals are on U.S. soil, radicalized and inspired by foreign terrorist organizations, and pose increasingly high threat levels to our public safety and national security.
The United States is preparing to host several major public events in 2026--most notably, the FIFA World Cup and the celebration of the 250th anniversary of the Declaration of Independence.
These large-scale, high-visibility gatherings represent potential targets for a range of threat actors and significantly elevate our national risk posture.
Foreign adversaries pose a strategic threat to public safety, and their objectives may include disrupting national morale, undermining public trust, or exploiting symbolic events for geopolitical messaging.
The Israel-Hamas conflict and a resurgence of English-language propaganda from groups such as ISIS and Al-Qaida have directly contributed to a rise in calls for violence on U.S. soil. These efforts have been enabled by the permissive immigration and border policies under the Biden Administration, which allowed terrorists, extremists, and criminals to enter the country without vetting or oversight. These radical groups exploited President Biden's open borders to gain a foothold inside the United States. We are now addressing the consequences of failed policies under the previous Administration that have allowed foreign terrorist organizations to inspire, recruit, and mobilize individuals already inside our nation. This is not a distant threat--it is a direct and growing risk to homeland security that demands urgent, coordinated action.
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1 U.S. Department of Justice, "United States Files Civil Forfeiture Complaint Against $225M in Funds Involved in Cryptocurrency Investment Fraud Money Laundering" (18 June 2025). Accessed 25 November 2025 at: https://www.justice.gov/opa/pr/united-states-files-civil-forfeiture-complaint-against-225m-funds-involved-cryptocurrency UNCLASSIFIED//FOR OFFICIAL USE ONLY
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The Trump Administration has made this threat a national security priority. DHS, using a wholeof-government approach, will continue using every available tool and authority we have to combat the risk of foreign terrorists who try to abuse our immigration system and threaten the American people.
Threats from radicalized domestic violent extremists and lone actors remain serious. Intentional targeting and murderous attacks on ICE agents in Texas, parishioners in Michigan, and here in Washington, D.C. on two National Guardsmen, horribly detail despicable acts that are sadly becoming increasingly too common. These threats underscore a clear need for security strategies that counter both large-scale attacks and precision threats against individuals. DHS will remain vigilant in its mission to protect our country and its citizens from the many threats we face, especially as we enter a historic year where America will be at the center of the world stage.
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Threats to Economic Security
The U.S. economy faces challenges from anti-competitive or illicit foreign economic practices that hurt the prosperity of all Americans. These include economic espionage, intellectual property theft, and customs fraud--often through illicit front companies or abuses of the visa system to acquire sensitive U.S. equipment, information, and technology.
Exacerbating the economic threat and harm to the United States, the use of front companies and exploitation of the global shipping ecosystem sidestep U.S. export controls, evade U.S. and international sanctions, and obscure the purveyors profiting from illicit activities.
Economic security is national security, because a country that cannot feed, fuel, and provide for itself cannot defend itself. Under President Trump's leadership, we will continue to protect American economic interests and bolster American economic power and technological innovation, further enabling our economic growth and prosperity.
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Conclusion
The American people depend on the Department of Homeland Security to always remain vigilant, agile, and responsive. Our nation faces relentless and evolving threats that target our people, our borders, our infrastructure, and our way of life. The Department of Homeland Security is united in our enduring commitment to protect America against all threats, across all domains.
Under President Trump's leadership, we have established the most secure border in our nation's history, prevented the entry of dangerous criminals, and removed illegal aliens who pose a threat to public safety. We continue to work with state, local, and tribal governments, law enforcement officials, and industry and international partners to detect and thwart a myriad of direct threats.
We will never yield, never waver, and never back down. We will continue to do everything it takes to safeguard this great nation and all Americans.
Thank you for the privilege to speak with you today and for your continued support of DHS. I look forward to your questions.
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Original text here: https://homeland.house.gov/wp-content/uploads/2025/12/2025-12-11-HRG-Testimony-1.pdf
Acting Deputy Assistant Under Secretary for Health for Patient Care Services Wiechers Testifies Before Senate Veterans' Affairs Committee
WASHINGTON, Dec. 18 -- The Senate Veterans' Affairs Committee releases the following written testimony by Ilse Wiechers, acting deputy assistant under secretary for health for patient care services of the Veterans Health Administration, from a Dec. 3, 2025, hearing entitled "Medication Management in VA Healthcare":* * *
Chairman Moran, Ranking Member Blumenthal, and other Members of the Committee: thank you for inviting us here today to discuss our efforts to ensure safe, effective, and Veteran-centered medication management, as well as three draft bills that would affect VA programs and services. ... Show Full Article WASHINGTON, Dec. 18 -- The Senate Veterans' Affairs Committee releases the following written testimony by Ilse Wiechers, acting deputy assistant under secretary for health for patient care services of the Veterans Health Administration, from a Dec. 3, 2025, hearing entitled "Medication Management in VA Healthcare": * * * Chairman Moran, Ranking Member Blumenthal, and other Members of the Committee: thank you for inviting us here today to discuss our efforts to ensure safe, effective, and Veteran-centered medication management, as well as three draft bills that would affect VA programs and services.I am Dr. Ilse Wiechers, Acting Deputy Assistant Under Secretary for Health for Patient Care Services within the Veterans Health Administration. Joining me today is Dr. Tom Emmendorfer, Executive Director, Pharmacy Benefits Management Services.
We appreciate the Committee's attention to the issue of polypharmacy--defined as the concurrent use of multiple medications--and its potential risks, including adverse drug interactions and adverse drug events. Veterans often present with complex health conditions, including chronic pain, posttraumatic stress disorder (PTSD), traumatic brain injury (TBI), and substance use disorders (SUD). These conditions frequently require multifaceted treatment approaches, which can lead to complex medication regimens.
While polypharmacy may be clinically appropriate for some Veterans in some contexts, VA recognizes the risks associated with excessive or poorly coordinated prescribing.
We have taken a proactive, data-driven approach to address these risks while ensuring that Veterans receive the care they need.
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Medication Management Within VA
VA's medication management strategy is supported by a centralized, evidencebased national formulary that ensures consistency, safety, and cost-efficiency across all VA medical facilities. Formulary decisions are based on real-world evidence, clinical value, and safety, rather than market incentives. Non-formulary medications remain accessible through a transparent, standardized request process. This system allows VA to negotiate national contracts, reduce geographic variability, and improve outcomes through centralized oversight and analytics.
Medication reconciliation is a cornerstone of VA's patient safety efforts. This process ensures that Veterans' medication lists are accurate and up to date across all care settings, including from community care providers and other Federal providers. VA emphasizes collaboration among providers, patients, and caregivers, and leverages secure messaging, online portals, and mobile apps to support communication and reduce discrepancies.
VA has implemented several nationally recognized initiatives to reduce unnecessary medication use and promote safer prescribing. The VIONE program, launched in 2016, is a system-wide deprescribing initiative that empowers clinicians to evaluate medications based on whether they are Vital, Important, Optional, Not indicated, and Every medication has a reason (VIONE). Since its launch in 2016, the program has eliminated over 3.4 million unnecessary or potentially inappropriate prescriptions for more than 1.26 million Veterans. To build on this success, VA recently issued a Request for Information to industry to identify innovative software solutions that can further support individualized medication review and deprescribing, which is the planned and supervised process of reducing or stopping medications that are no longer appropriate or wanted with the goal of improving health outcomes.
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Opioid Safety and Prescribing Practices
VA's Opioid Safety Initiative (OSI), launched in 2013, has led to a 68% reduction in the number of Veterans receiving opioids, a 90% reduction in concurrent opioid and benzodiazepine prescriptions, and an 86% decrease in new long-term opioid therapy starts. The OSI is supported by tools such as the Stratification Tool for Opioid Risk Mitigation, which uses predictive analytics to identify Veterans at high risk of overdose or suicide and prompts interdisciplinary case reviews to improve care coordination.
These reviews have been associated with significant reductions in all-cause mortality and repeat overdose events.
VA integrates data from Prescription Drug Monitoring Programs (PDMP) and internal dashboards to track prescribing patterns and ensure compliance with clinical guidelines. Risk mitigation strategies, including urine drug screening and informed consent, are embedded in clinical workflows. VA also distributes naloxone, a medication that rapidly reverses opioid overdoses, widely and provides overdose education to Veterans and caregivers. Naloxone is available free of charge through VA pharmacies, mobile units, and community outreach events.
Complementing these efforts, VA operates the Overdose Education and Naloxone Distribution (OEND) program to prevent opioid overdose deaths. The OEND program educates Veterans and caregivers on recognizing and responding to overdoses and ensures broad access to naloxone. As of September 30, 2025, VA has dispensed more than 1,863,901 naloxone prescriptions.
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Psychotropic Medication Oversight
VA has implemented the Psychotropic Drug Safety Initiative (PDSI), a decade-long quality improvement program focused on optimizing psychotropic prescribing. This initiative has significantly reduced potentially inappropriate prescribing, including a reduction in benzodiazepine use among Veterans with PTSD as well as SUDs. PDSI continues to evolve, and current priorities include: (1) improving monitoring of Veterans prescribed stimulant and antipsychotic medications, (2) reducing antipsychotic use among Veterans with dementia, and (3) reducing benzodiazepine use among older Veterans.
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Mental Health and Pain Management
VA prioritizes evidence-based psychotherapies as first-line treatments for PTSD and other mental health conditions. These include Cognitive Processing Therapy, Prolonged Exposure Therapy, and Written Exposure Therapy, all of which are available across VA's specialized PTSD programs. The Model of Accelerated Services Delivery offers intensive therapy formats that reduce the time to recovery, while the Concurrent Treatment of PTSD and SUDs using Prolonged Exposure integrates care for Veterans with dual diagnoses.
VA also supports non-pharmacologic pain management through its Whole Health model, which includes complementary and integrative health modalities such as acupuncture, yoga, tai chi, and mindfulness. These services are available in person and via telehealth, expanding access to Veterans in rural and underserved areas.
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Pharmacogenomics and Clinical Decision Support
VA uses pharmacogenomics (PGx) by integrating genetic testing data into medical records to inform and optimize medication management for Veterans to prevent adverse drug events and to avoid ineffective medications. In 2019 the VA National Pharmacogenomics Program (formerly known as PHASER) was established. In fiscal year (FY) 2023 the Expanding Clinical Pharmacist Practitioners in Pharmacogenomics program was established to further enhance PGx testing capabilities by leveraging Clinical Pharmacist Practitioners to bridge knowledge gaps and foster the integration of PGx test results into clinical care. This program increased the number of facilities offering PGx testing from 45 in 2023 to 153 in 2025, thereby increasing testing to nearly 4,500 new tests ordered per month with more than 125,000 tests completed to date.
These tests inform prescribing decisions for almost 100 commonly used medications, including those used to treat depression, pain, selected cancers, and cardiovascular conditions as well as other conditions. PGx data is integrated into the electronic health record, and clinical decision support tools generate alerts for drug-gene interactions, enabling real-time, prescribing guided by Veterans' pharmacogenomic test results. VA is planning on offering PGx testing at all VA medical centers by the end of calendar year 2026.
VA's Medication Order Check Health Care Application provides automated alerts for drug-drug interactions, therapeutic duplications, inappropriate dosing, and pharmacogenomic risks. These alerts support safer prescribing and are reviewed by pharmacists before medications are dispensed.
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Academic Detailing and Provider Education
VA's academic detailing program delivers structured, tailored education to clinicians focused on evidence-based medication management. Trained pharmacy specialists conduct interactive sessions--both in-person and virtual--providing up-todate, unbiased information addressing medication safety, efficacy, and costeffectiveness. Educational tools such as provider handouts and patient materials reinforce these messages. Targeting high-impact prescribers managing large panels of patients with PTSD and chronic pain, academic detailing has demonstrated measurable success in reducing risky opioid prescribing, lowering co-prescription of opioids and benzodiazepines, and increasing distribution of naloxone. Academic Detailing has been implemented nationally but can vary from site to site. Facilities with greater participation in academic detailing show more rapid improvements in prescribing practices.
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Department of War (DOW) to VA Transition and Community Care
VA and DOW have established robust systems to ensure continuity of care during the critical transition period from military to civilian life. VHA Directive 1108.15, Continuation of Mental Health Medications Initiated by Department of War Authorized Providers, mandates the continuation of DoW-prescribed medications during transition, with exceptions only when a medication is clinically unsafe or inappropriate. VA Liaisons, Military2VA Case Managers, and the Solid Start Program provide proactive outreach and care coordination. In 2025, VA launched a national case management program for transitioning Service members with opioid use disorder, leveraging DoW data to ensure timely intervention and engagement in evidence-based treatment.
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Pending Legislation
Having detailed the clinical initiatives that guide VA's medication management and patient safety efforts, I will now address the Department's views on the three bills on today's agenda.
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S. XXXX End Veterans Overdose Act of 2025
Summary: Section 2(a) of the bill would require VA to make covered medications available at VA pharmacies to any covered Veteran or caregiver of a covered Veteran at no charge and without a prescription.
Section 2(b) would require VA to ensure that any Veteran or caregiver of a covered Veteran who receives a covered medication under subsection (a) also receives drug information on the use of such medication.
Section 2(c) would state that, in carrying out this section, VA may only collect the personally identifiable information (PII) needed for prescribing covered medication, and any PII collected under this section could only be used solely for the purpose of delivering, evaluating, and enhancing the quality of health care. VA could not use any PII collected under this section for the purpose of preventing a Veteran from employment.
Section 2(d) would require VA, not later than 2 years after the date on which VA first makes covered medications available to covered Veterans and caregivers under this section, and annually thereafter, to submit to Congress a report on this section. VA would need to include in these reports the number of covered Veterans and caregivers of covered Veterans who received covered medications under this section; an assessment of the feasibility and advisability of expanding the authority under this section to provide covered medications to immediate family members of covered Veterans; an assessment of the feasibility of expanding the authority under this section to include non-Department health care providers through the Veterans Community Care Program, an assessment of trends in the utilization of covered medications under this section, and any other recommendations with respect to the authority under this section.
Section 2(e) would define various terms. The term "caregiver" would mean a family caregiver of a Veteran participating in the program of comprehensive assistance for family caregivers under 38 U.S.C. Sec. 1720G(a) or a caregiver of a Veteran participating in the program of general caregiver support services under 38 U.S.C.
Sec. 1720G(b). The term "covered medication" would mean any opioid overdose rescue medication, such as naloxone. The term "covered veteran" would have the meaning given that term in 38 U.S.C. Sec. 1703(b), which generally refers to Veterans enrolled in VA health care or those eligible to receive care without needing to enroll.
Position: VA supports this bill, subject to amendments and the availability of appropriations.
Views: VA supports the intent of the bill to expand access to opioid overdose rescue medications for Veterans. Currently, 38 U.S.C. Sec. 1710(g)(3)(B) already exempts from copayment requirements for medical services for eligible Veterans with respect to education on the use of opioid antagonists to reverse the effects of overdoses of specific medications or substances. Similarly, 38 U.S.C. Sec. 1722A(a)(4) already exempts enrolled Veterans from medication copayment requirements for opioid antagonists furnished to Veterans who are at high-risk for overdose of a specific medication or substance to reverse the effect of such an overdose.
Naloxone acts quickly to reverse opioid overdose, restoring breathing and buying crucial time for emergency responders. It is safe and effective, is not a controlled substance, and VA emphasizes education about its use, overdose risk signs, safe medication storage, and disposal.
To expand access to opioid antagonists, like naloxone VA has permitted standing orders (or prescriptions), for any Veteran at risk of overdose. All over-the-counter medications, like naloxone, dispensed by VHA require a prescription, which allows for accountability of procured pharmaceuticals and stewardship of Government resources.
While we are concerned that the bill would prohibit VA from using prescriptions, which could increase the risk for waste and fraud, the VA stands ready to work with the Committee to mitigate these concerns and increase the availability of overdose reversal medications, like naloxone, to save lives.
Naloxone is already available free of charge to enrolled Veterans in various forms, including nasal sprays. VA distributes naloxone not only through VA pharmacies but also at Community Resource and Referral Centers, resource fairs, and mobile medical units. Veterans can request naloxone by speaking to a provider, contacting a pharmacist (who can then facilitate a naloxone order from the Veteran's provider if a standing order does not exist), or messaging their care team through the VA Mobile App or VA's website.
VA provides education to caregivers about the availability and use of naloxone, as indicated, and if a caregiver expresses an interest in naloxone for a Veteran, the local Caregiver Support Team notifies the Veteran's provider of the request, helping to ensure continuity of care for the Veteran.
Cost Estimate: VA does not have a cost estimate for this bill.
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S. XXXX Protecting Veteran Access to Telemedicine Services Act
Summary: Section 2 of the bill would add a new section 1730D to title 38, United States Code (U.S.C.), regarding the delivery, distribution, and dispensation of controlled medications through telemedicine. The proposed subsection (a) of this statute would state that, pursuant to 38 U.S.C. Sec. 1730C and the requirements of the Controlled Substances Act (CSA), 21 U.S.C. Sec. 801 et seq, covered health care professionals could use telemedicine through the use of an interactive telecommunications system, including an audio-only telecommunications system, to deliver, distribute, or dispense to eligible patients a controlled substance that is a prescription drug as determined under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq, regardless of whether the professional has conducted an in-person medical examination under the following three circumstances: first, if the covered health care professional (A) is acting in the usual course of professional practice, (B) is authorized to prescribe the basic class of such controlled substance under an active, current, full, and unrestricted state license, registration, or certification, and (C) subject to subsection (b), at the time of the telemedicine visit of the patient, the provider both has reviewed VA's electronic health record database, including the internal prescription database, and the PDMP for the state in which the patient is located (if such a PDMP exists) for at least the 1-year period preceding the date of the visit, as well as provided documentation of such review and all attempts to access such databases and program, including successful and unsuccessful attempts; second, if the substance is delivered, distributed, or dispensed for a legitimate medical purpose; and third, the patient has been seen in-person by another health care professional of the Department or a non-Department provider under referral from the Department, during the 2-year period preceding the telemedicine visit.
Proposed section 1730D(b) would limit covered health care professionals, when they are unable to review VA's electronic health record database (including the internal prescription database) and the PDMP for the State in which the patient is located, to providing no more than a seven-day supply until the covered health care professional is able to review such databases and program. If the database or PDMP required to be reviewed is inaccessible for an extended period, covered health care professional could provide consecutive 7-day supplies of a controlled substance until the database or program is accessible.
Proposed section 1730D(c) would state the authority under this section could only be used to supply a controlled substance for not more than a 6-month period.
Proposed section 1730D(d) would allow VA to waive the third requirement under subsection (a) (that the patient have been seen in-person during the previous 2 years) for patients newly enrolled in VA care or under other circumstances as VA determines necessary.
Proposed section 1730D(e) would require VA to ensure that the authority under this section is used to prevent interruptions to patient care and not as a replacement for routine in-person patient care.
Proposed section 1730D(f) would require VA to establish in regulations guidelines and a process for the delivery, distribution, and dispensation of a controlled substance pursuant to subsection (a). These regulations would have to include parameters for prescribing controlled substance to Veterans under this section, Proposed section 1730D(g) would provide that nothing in this section could be construed to remove, limit, or otherwise affect any obligation of a covered health care professional under the CSA.
Proposed section 1730D(h) would require VA to submit to Congress an annual report that addresses the use of the authority under this section in each Veterans Integrated Service Network.
Proposed section 1730D(i) would provide that this authority would terminate on the date that is 5 years after the date of enactment.
Proposed section 1730D(j) would define the terms "controlled substance," "deliver," "dispense," and "distribute" by reference to section 102 of the CSA. It would also define the term "covered health care professional" to mean a health care professional who is either a VA employee appointed under 38 U.S.C. Sec.Sec. 7306, 7401, 7405, 7406, or 7408; or under title 5 or operating from a VA facility (including a VA clinic); who is authorized by VA to provide health care under chapter 17; who is required to adhere to all standards for quality relating to the provision of health care in accordance with applicable VA policies; who has an active, current, full, and unrestricted license, registration, or certification or meets qualification standards set forth by VA within a specified time frame; and, with respect to health care professionals listed under 38 U.S.C. Sec. 7402(b) (which includes physicians, dentists, nurses, and other providers), has the qualifications for such profession as set forth by VA. The term would also include contractors furnishing care in a Department facility or clinic and health professions trainees appointed under 38 U.S.C. Sec. 7405 who are under the clinical supervision of a health care professional described above.
Position: VA supports this bill, subject to amendments.
Views: VA greatly appreciates the Committee's engagement and attention on this issue, as well as the willingness to discuss technical issues VA has identified with the bill. We believe these discussions have been productive, and we look forward to continuing to work together as the Committee considers and advances this legislation.
VA wants to ensure this new authority effectively addresses the two significant barriers VA has experienced in ensuring providers can furnish care, including prescribing controlled substances, to Veterans through telehealth: restrictions within the CSA, and variability in state law prescribing requirements. These barriers have created significant access challenges for care delivery. As currently written, this bill appears to be intended to address the first of these barriers but not the second. VA recommends amendments to ensure both barriers are addressed. The Drug Enforcement Administration (DEA) and the Department of Health and Human Services (HHS) published a final rule authorizing VA providers to prescribe controlled substances via telemedicine (90 FR 6523), due to become effective December 31, 2025 (90 FR 13410). While VA supports DEA's rule, it would only address one barrier, and Congress enacting legislation to provide this authority would provide an even stronger basis in law to support the delivery of care Veterans and other beneficiaries have earned.
While VA strongly supports the goal of this bill, amendments would be required to ensure it sufficiently addresses the first access barrier, and further amendments would be needed to address the second barrier.
As context for the second access barrier, the practice of telemedicine, as defined in the CSA, generally requires compliance with applicable Federal and state laws.
These requirements concerning applicable state laws create ambiguity and legal concerns for VA health care professionals who could be subject to different state laws.
Applicable state laws could be interpreted under the CSA as those in the provider's state of licensure; the provider's state of practice; the provider's state of registration with the DEA; the patient's state of residence; or the patient's location at the time of the clinical encounter. If one or more of these states' laws apply, a covered health care provider might be required to operationalize multiple practice standards; provide similar Veterans with different services; modify the treatment of a single Veteran based on the location at the time of a visit; or be prohibited from prescribing medically appropriate treatment at all.
VA included a legislative proposal in the FY 2024 and FY 2025 President's Budget request to address the risk of variable state laws to Veteran access to care, while ensuring that providers remain subject to the CSA's requirements that prescriptions be for legitimate medical purposes and prescribed in the usual course of practice. Where these requirements are defined by state law, VA's proposal would have authorized VA health care professionals to prescribe necessary controlled substances for their patients when adhering to national prescribing standards, regardless of a Veteran's location in the country and variable state laws.
VA has published a final rule (90 FR 47595) asserting the preemption of certain state laws regarding the prescribing of controlled substances at 38 C.F.R. Sec. 17.417(b)(3); this final rule became effective November 3, 2025. While VA has asserted this authority pursuant to 38 U.S.C. Sec. 1730C, similar to our discussion regarding the DEA and HHS rule, we believe Congress specifically amending that statute to assert this authority would provide a clearer and stronger legal basis for the preemption of state law.
Authorizing VA health care professionals to follow a single, understandable Federal framework for telehealth-controlled substance prescribing would enable VA to maximally leverage telehealth to expand access, reach vulnerable Veterans in rural communities, and deliver consistent services to all Veterans, wherever they are in the country.
Again, VA greatly appreciates the Committee's interest in addressing access risks for Veterans. We stand ready to provide any further necessary technical assistance on this bill.
Cost Estimate: VA estimates there are no costs associated with the bill, if amended.
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S. XXXX Written Informed Consent Act
Summary: Section 2 of this bill would require VA to update Veterans Health Administration (VHA) Directive 1005, dated May 13, 2020, and titled "Informed Consent for Long-Term Opioid Therapy for Pain," to apply to antipsychotic, stimulant, antidepressant, anxiolytic, and narcotic medications.
Position: VA cites concerns with this bill.
Views: While VA shares the goal of ensuring Veterans are fully informed about their treatment options, we have significant concerns that the bill, as currently drafted, would impose burdensome and unnecessary requirements, impairing access to timely, effective care without improving safety or patient understanding and potentially worsen patient outcomes.
VA maintains an unwavering commitment to the health and safety of America's Veterans. A critical component of this commitment is ensuring that informed consent practices are consistently and rigorously applied across all VA health care facilities in accordance with VA statutory and regulatory authority and policy requirements. VA supports continuous quality improvement in medication prescribing and informed consent practices and as such, rescinded VHA Directive 1005 dated May 13, 2020, through VHA Directive 1004.01(3), titled "Informed Consent for Clinical Treatments and Procedures," effective December 12, 2023. Consequently, it is unclear what legal effect, if any, the bill would have if enacted.
Under new VHA Directive 1004.01(3) and 38 C.F.R. Sec. 17.32, VA practitioners are already required to conduct and document an informed consent discussion with every Veteran, or the Veteran's surrogate when the Veteran lacks decision-making capacity, for any medical treatment or procedure recommended to them, including prescribed medications. This process includes a thorough explanation of the clinical indications, risks, benefits, and alternatives, enabling Veterans or their surrogates to make voluntary and informed decisions about their care.
Signature consent, which involves obtaining both the Veteran's or surrogate's and practitioner's signatures on a formal VA consent form, is reserved for treatments and procedures that meet high-risk criteria as defined by regulation and policy. These determinations are made using evidence-based criteria developed by national VA medical and pharmacy subject matter experts. Additionally, practitioners may determine, on a case-by-case basis, that a medication warrants signature consent for a specific Veteran based on an individualized clinical assessment.
The draft bill appears to mandate signature consent for approximately 100 medications approved by the Food and Drug Administration, many of which are routinely prescribed and do not meet the high-risk threshold. For these medications, the current practice of informed consent discussion and documentation in the electronic health record is both clinically appropriate and sufficient to protect Veterans' rights and safety. Requiring signature consent in these cases would not enhance patient outcomes and could, in fact, have adverse effects.
VA is concerned that the proposed requirements could mislead Veterans or their surrogates by implying that certain medications are inherently high-risk when they are not, potentially deterring Veterans from accepting clinically appropriate treatments. The bill could also impair access to care, particularly for Veterans in rural or underserved areas, by introducing logistical barriers and delays in the prescribing process. Requiring signature consent could undermine clinical judgment by discouraging the use of effective medications due to the administrative burden associated with signature consent. The bill appears to assume that signature consent improves patient-centered outcomes such as understanding, satisfaction, or safety, especially when compared to other commonly prescribed outpatient medications, but that is not necessarily the case.
Moreover, VA is concerned that the additional requirements could increase the risk of negative outcomes, including suicide, by delaying access to essential psychiatric and pain management medications. VA supports continuous quality improvement in medication prescribing and informed consent practices. Rather than imposing rigid signature requirements, VA is engaged in several initiatives to improve medication safety. For example, VA is continuing implementation of the Mobile Informed Consent initiative, which enables practitioners to send real-time, evidence-based, easy-to-understand educational materials to Veterans as part of the informed consent process.
VA is also conducting system-wide quality improvement campaigns focused on psychotropic prescribing through the Psychotropic Drug Safety Initiative.
Cost Estimate: VA does not have a cost estimate for this bill.
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Conclusion
VA is committed to ensuring that every prescription advances--not undermines--the health of Veterans. We are proud of the progress made through initiatives like VIONE, OSI, and PDSI, but we recognize that more work remains. VA will continue its medication review efforts, improve access to innovative and nonpharmacologic treatments, and enhance consistency in prescribing practices through data-driven oversight and provider education.
We appreciate the Committee's oversight and support as we continue to put Veterans first by ensuring they receive the safest, most effective, and most compassionate care possible. We are prepared to answer any questions you may have.
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https://www.veterans.senate.gov/services/files/5D8EA480-E87A-410C-878E-DA943C0C8FB3
Groom Law Group Principal Salek-Raham Testifies Before House Education & Workforce Subcommittee
WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Andrew D. Salek-Raham, a principal at Groom Law Group, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement":* * *
Good morning, Chairman Allen, Ranking Member DeSaulnier, and members of the Subcommittee on Health, Employment, Labor, and Pensions ("Subcommittee").
My name is Andrew Salek-Raham. I am a Principal at Groom Law Group, Chartered ("Groom"), a law firm specializing in employee ... Show Full Article WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Andrew D. Salek-Raham, a principal at Groom Law Group, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement": * * * Good morning, Chairman Allen, Ranking Member DeSaulnier, and members of the Subcommittee on Health, Employment, Labor, and Pensions ("Subcommittee"). My name is Andrew Salek-Raham. I am a Principal at Groom Law Group, Chartered ("Groom"), a law firm specializing in employeebenefits since it was founded 50 years ago by Theodore R. Groom, who was instrumental in developing ERISA's landmark fiduciary responsibility provisions and later the Multiemployer Pension Plan Amendments of 1980. I have represented plan sponsors, fiduciaries, and service providers in every major category of ERISA class action lawsuit and in U.S. Department of Labor investigations and enforcement actions for over a decade.
Thank you for the opportunity to testify today about a much-needed legislative coursecorrection to a plaintiff-friendly pleading standard. That standard has catalyzed an explosion of meritless ERISA class action lawsuits; enriched the class action plaintiffs' bar at the expense of American workers; and cost plan sponsors, fiduciaries, and service providers hundreds of millions of dollars in strike suit defense costs and settlement payments. In short, common-sense legislation is necessary to ensure that ERISA class action plaintiffs' lawyers are required to plead something, rather than nothing.
I. To take a step back, at the outset of every ERISA class action lawsuit, the plaintiff must file a complaint that satisfies his or her pleading burden: the complaint must allege facts making it plausible--not just possible--that the defendants violated ERISA, harming the plan and its participants. If the plaintiff does so and defeats the defendants' early-stage motion to dismiss, the plaintiff is entitled to harness the court's subpoena power to obtain "discovery"--written responses to questions, the production of confidential documents, and deposition testimony--from the defendants and from third parties.
Plaintiffs and defendants in ERISA class actions have asymmetric discovery obligations.
The named plaintiffs who purport to represent the class generally have relatively little information or knowledge about the subject matter of the lawsuit. On the other hand, defendants and third party witnesses--usually companies that sponsor ERISA-covered plans, plan fiduciaries, and plan service providers--typically have voluminous records and employ many witnesses with knowledge potentially relevant to the lawsuit.
These asymmetric obligations impose asymmetric costs. Once past the pleadings stage, the parties know that ERISA class action defendants are likely to spend upwards of seven figures just to reach summary judgment, which is defendants' first opportunity to argue the merits of their case. These astronomical costs create a strong incentive for defendants to agree to a cost-of-defense settlement to buy peace, regardless of whether plaintiffs' claims have any merit.
It is for this reason--to spare defendants from strike suits--that the Supreme Court has called the pleadings-stage motion to dismiss an "important mechanism for weeding out meritless [ERISA] claims."/i
Unfortunately, many district courts have elected not to apply this "important mechanism" such that motions to dismiss are often not effective at "separating the plausible sheep from the meritless goats."/ii
There are two main reasons meritless ERISA lawsuits slip past judicial gatekeepers.
First, plaintiffs' counsel often exploit ERISA's inherent complexity for their own advantage by obfuscating, rather than illuminating, the true nature of their claims. This commonly takes the form of a complaint containing several hundred paragraphs of dense factual allegations concerning investment theory; economic and market data; and complex, industry-specific terminology and concepts. Courts--drinking from a firehose as a general matter--are often understandably inclined to pass a case through to discovery rather than sift through the morass.
Second, courts have articulated a low bar for pleading prohibited transaction claims under ERISA section 406. In short, these courts have held that a plaintiff need only allege the bare elements of the transactions enumerated in section 406, and it is defendants who are responsible for pleading and proving the exemptions to those prohibited transaction found in ERISA section 408. The upshot is that some courts have held the most mundane, innocuous allegations--for example, "The plan paid a service provider for necessary services," or "An employee stock ownership plan purchased employer stock from the company's owner."--suffice to allege that a defendant violated ERISA. The Supreme Court in Cunningham v. Cornell University recently endorsed such an interpretation for section 406(a)(1)(C) claims related to fees for plan service providers./iii
II. Private plaintiffs' attorneys have taken advantage of the low pleading bar and high defense costs through trial to extract settlements in the millions of dollars--regardless of whether plan sponsors, fiduciaries, and service providers did anything wrong.
Plaintiffs' attorneys in the ERISA class action space fall into three main categories. The first is maximalist in their filings and minimalist in discovery: they file as many cookie-cutter complaints as possible but are generally uninterested in expending time and effort to conduct discovery or try a case. Instead, they rely on baseline costs of defense through trial and appeal-- again, typically in the millions--to extract an early cost-of-defense settlement.
The second type employs the opposite model--minimalist in their filings and maximalist in discovery. These firms seek to sue as many individuals as possible, no matter how attenuated they may be to the plaintiffs' claims. Defendants often include board members, members of management, plan service providers and advisors, and company shareholders--and even the spouses, children, and grandchildren of those individuals. Once they have maximized the number of potential defendants, the plaintiffs unleash a torrent of onerous discovery demands disproportionate to the needs of the case. Manufacturing complexity in this way significantly ups the costs of defense, increasing settlement pressure, while simultaneously inflating the plaintiffs' attorneys' potential fee award in the likely event of a settlement or unlikely event of a judgment.
The third category combines the worst elements of the first two: these plaintiffs' firms are maximalist in their filings and maximalist in discovery. They bulk-file copies of a stock complaint, pepper defendants with burdensome discovery not proportional to the needs of the case, and use those costs to leverage a settlement.
Examples abound. In one recent lawsuit, plaintiffs' counsel sued over a dozen defendants--including a defendant's infant grandchild. Plaintiffs there went so far as to send a process server to the infant's home--a wholly unnecessary step that only harassed the other defendants in an effort to increase settlement pressure. In another recent example, plaintiffs' counsel unnecessarily sued dozens of defendants, who were eventually represented by roughly a half dozen different law firms. This put enormous financial strain on the plan's sponsor--which was obligated to indemnify most of the defendants for their defense costs and settlement payments--during the multi-year pendency of the meritless lawsuit.
In an ideal world, class representatives--the individuals named as plaintiffs in a class action complaint--would take seriously their responsibility to engage competent class counsel, monitor their performance, and ensure that they act in class members' best interests. But ERISA class representatives generally provide no meaningful check on plaintiffs' counsel's behavior. The typical class representative is a former employee who responded to an (often misleading or incomplete) advertisement that plaintiffs' counsel posted to social media. They have little to no knowledge of, or involvement in, the lawsuit's claims or the manner in which their counsel is litigating them. Simply put, most class representatives have no idea what they are signing up for or why.
Many class representatives who might have understood what they signed up for initially do not follow through when the rubber hits the road. To give one example, one class representative quit simply because he did not want to drive a short distance to his deposition. Rather than dismiss the headless lawsuit, the court held it open while class counsel coaxed the named plaintiff back into the fold. He later appeared for his deposition in a limousine that his counsel provided to make sure he showed up.
Without any meaningful oversight from their clients, the ERISA plaintiffs' bar steers lawsuits toward settlements that line their own pockets with millions of dollars in fees but leave de minimis recoveries for the plan participants whose interests they purport to represent. I am aware of many examples in which class members received a per-person pittance, while plaintiffs' counsel walked away with a large percentage of a multi-million-dollar settlement.
III. One of Congress's central goals when it created ERISA's enforcement regime was to fairly balance providing participants with an avenue for pursuing meritorious claims while insulating plan sponsors and fiduciaries from frivolous ones. The ground-level pleading bar that has evolved in the courts has disrupted this balance, benefiting class action plaintiffs' lawyers and harming American workers and their employers.
Many district and appellate courts have recognized the harm that would result from allowing lawsuits to proceed based only on allegations that, for example, a 401(k) plan paid compensation to service providers, or an employee stock ownership plan ("ESOP") acquired employer stock for its participants. These courts sensibly required plaintiffs to plead something more--for example, that the routine transaction was actually intended to benefit a third party, that the compensation paid to the service provider was unreasonable, or that the ESOP purchased employer stock for more than fair market value. Others did not.
The Supreme Court in Cunningham v. Cornell University recently weighed in on this divide./iv
The Court shared the lower courts' concern about the consequences of a toothless pleading standard. It fretted that allowing cases to proceed based only on the fact that a routine transaction occurred would mean that "plaintiffs could too easily get past the motion-to-dismiss stage and subject defendants to costly and time-intensive discovery" for "meritless litigation," thereby "harm[ing] the administration of plans and forc[ing] plan fiduciaries and sponsors to bear most of the associated costs." Unfortunately, the Court's hands were tied: "These are serious concerns but they cannot overcome [ERISA's] statutory text and structure."
The Supreme Court did what it could. It offered a number of "existing tools"--judicial tools--that "district courts can use . . . to screen out meritless claims before discovery." But in my view, employing these options is unlikely to stem the tide of meritless class action litigation. For example, the Cunningham Court noted that defendants may be able to recover attorneys' fees and costs under ERISA's cost-shifting provision, but courts are almost universally disinclined to punish plan participants--who would be on the hook, not their attorneys--for filing a lawyer driven, class action lawsuit, even when meritless. The Court also suggested that defendants could move for sanctions against plaintiffs' counsel or move to dismiss claims for lack of Article III standing, but lower courts are loath to sanction attorneys and are often reluctant to dismiss claims at the pleadings stage for lack of standing.
The Supreme Court's Cunningham decision has had an immediate impact. In the roughly seven months after it was issued, the plaintiffs' bar has filed approximately ten new class action lawsuits including prohibited transaction claims for fees paid to plan service providers. In the seven months before Cunningham, just two such cases were filed approximately. Many other plaintiffs in cases predating Cunningham have amended their complaints to add prohibited transaction claims.
Legislative action is needed to do what the Cunningham Court could not: revise ERISA's text and rebalance the pleadings stage equities. The ERISA Litigation Reform Act offers the following commonsense fixes that would help to restore an appropriate equilibrium.
It would require a plaintiff to plead and prove that a plan paid unreasonable fees for services--not just that the plan paid a service provider.
It would require a plaintiff to plead and prove that an ESOP paid more than fair market value for employer stock in a stock purchase transaction--not just that the transaction occurred.
And it would require courts to stay onerous discovery while considering an early stage motion to dismiss--rather than unlocking the doors to discovery before the plaintiff shows that his or her claims have merit.
IV. Some have suggested that the issues discussed above are not concerning because, they say, the number of ERISA lawsuits is relatively low. But that view ignores the magnitude of the settlements the ERISA plaintiffs' bar has wrung from plan sponsors, fiduciaries, and service providers--especially relative to the value of their claims on the merits. By my firm's estimate, from 2015 to 2024, plaintiffs' firms capitalized on a low pleading bar to the tune of $1.76 billion in strike suit settlements in 401(k) cases alone--as compared to just $3.2 million in final judgments against defendants in such cases over that same timeframe.
ERISA's complexity presents a barrier to entry for new litigants. But a pleading standard-- like the current one--that greases the skids to costly discovery and lucrative cost-of-defense settlements will only incentivize more plaintiffs'-side attorneys to enter the space and file more meritless lawsuits. In fact, it has already happened. By my firm's estimate, the number of plaintiffs' firms filing class action lawsuits involving 401(k) plans has at least doubled since 2019.
V. At bottom, employers voluntarily sponsor retirement plans--to which many also voluntarily contribute millions of dollars--for the benefit of American workers across the country.
ERISA's current statutory scheme has created an opportunistic plaintiffs' bar looking to profit at the expense of plan sponsors, fiduciaries, and the very participants whom they purport to represent.
But plan sponsors and fiduciaries who have met their obligations under ERISA should not have to choose between shelling out millions of dollars in settlements or paying even more to litigate a meritless case through trial. The proposed legislative reforms will help to even the playing field by requiring plaintiffs to plead something, rather than nothing./v
* * *
Footnotes:
i Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 425 (2014).
ii Id.
iii Cunningham v. Cornell Univ., 604 U.S. 693 (2025).
iv Id. at 708-09.
v I am providing this testimony on my own behalf, and not on behalf of Groom or any of its clients.
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Original text here: https://edworkforce.house.gov/uploadedfiles/salek-raham_testimony.pdf
Employee Retirement Income Security Act Industry Committee Legal Center Chair Butash Testifies Before House Workforce Subcommittee
WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Glenn Butash, chair of the ERIC Legal Center, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement":* * *
Chairman Allen, Ranking Member DeSaulnier, and Members of the Subcommittee:
On behalf of The ERISA Industry Committee (ERIC), thank you for the opportunity to testify today. My name is Glenn Butash, and I am the Chair of the ERIC Legal Center.1 Today's hearing is an important step ... Show Full Article WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Glenn Butash, chair of the ERIC Legal Center, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement": * * * Chairman Allen, Ranking Member DeSaulnier, and Members of the Subcommittee: On behalf of The ERISA Industry Committee (ERIC), thank you for the opportunity to testify today. My name is Glenn Butash, and I am the Chair of the ERIC Legal Center.1 Today's hearing is an important stepin addressing abusive litigation affecting employee benefit plans and their employer and union plan sponsors. ERIC appreciates the opportunity to contribute to this discussion.
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ERIC and the ERIC Legal Center
ERIC is a national advocacy organization exclusively representing the largest employers in the United States as sponsors of employee benefit plans for their nationwide workforces. ERIC member companies offer benefits to millions of employees and their families and are located in every state, city, and Congressional district. With member companies that are leaders in every economic sector, ERIC advocates before Congress and regulatory agencies on public policy issues that affect the ability of employers to sponsor benefit plans.
The ERIC Legal Center advocates for large employers in the courts on legal matters affecting their ability to provide health, retirement, and other compensation benefits to their nationwide workforces. On behalf of ERIC, the Center engages in litigation against state mandates and other measures that threaten the ability of employers to offer uniform nationwide benefits. The Legal Center also participates in cases that have the potential to significantly affect the design and administration of employee benefit plans under the Employee Retirement Income Security Act of 1974 (ERISA).
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1 I also serve as the Managing Counsel, U.S. Compensation and Benefits, at Nokia, an ERIC member company. I am testifying today solely on behalf of ERIC and the ERIC Legal Center, and the opinions expressed in this testimony do not necessarily reflect those of Nokia.
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For example, in the last few years alone, we have filed dozens of amicus curiae (friend of the court) briefs addressing important questions relating to, among other topics, ERISA preemption of state laws affecting employee benefit plans, permissible use of 401(k) plan forfeitures, calculation of actuarially equivalent benefits under a pension plan, and the allegations that must be included in a lawsuit against a benefit plan fiduciary in order to validly state a claim for relief.
For decades, the Committee on Education and Workforce has advanced solutions to some of the most challenging questions facing the tens of millions of Americans that receive health and retirement benefits at work. Oftentimes, those solutions have been creative and bipartisan, such as the SECURE 2.0 Act of 2022. The Committee also recently brought forth legislation to increase transparency and accountability for the U.S. Department of Labor's Employee Benefits Security Administration (EBSA).2 There is near consensus with the bipartisan, decades-long public policy judgment that encouraging benefit plan sponsorship helps strengthen financial security for American workers and retirees. That judgment is threatened by abusive litigation. Yet only modest clarifications of the system's ground rules would be needed to discourage such litigation while maintaining the ability of plan participants to vindicate their rights. For example, reasonable guardrails for pleading a claim for breach of the fiduciary duty in the area of plan costs, for pleading a claim that the fiduciary engaged in certain prohibited transactions, and for pursuing discovery prior to the court's determination that the claims asserted are plausible, are straightforward clarifications that would help discourage abusive litigation and further the bipartisan, decades-long, public policy judgment that encouraging plan sponsorship helps strengthen financial security for American workers and retirees.
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Federal Law Provides Strong Protections for Employee Benefits
The private sector's delivery of employee benefits is the backbone of health care coverage and retirement savings in the United States today. More than 150 million Americans get healthcare coverage through employer-provided plans, and nearly 100 million private sector workers have access to retirement savings plans such as 401(k) plans.3 Large employers, including ERIC members, are at the forefront of delivering high quality, high value, and innovative benefits to tens of millions of Americans.
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2 ERIC strongly supports the EBSA Investigations Transparency Act (HR 2869), which would impose modest annual reporting requirements, such as disclosure about the nature, number, length, and scope of active investigations. The EBSA Investigations Transparency Act would aid Congress in fulfilling its critical oversight responsibilities, ensuring that EBSA's enforcement activities and priorities are transparent and efficient. ERIC also strongly supports the Balance the Scales Act (HR 2958), which would bring transparency to EBSA's reported historical collusion with plaintiffs' lawyers suing benefit plans. EBSA should document this coordination and be transparent with affected employers - and with Congress. Finally, ERIC also supports the Retire Through Ownership Act (HR 5169), which would give certainty to employee stock ownership plan fiduciaries when relying on the work of independent valuation or business appraisers that use practices described in longstanding Internal Revenue Service (IRS) guidance.
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ERIC member companies sponsor health and retirement plans governed by ERISA and other laws and regulations overseen by EBSA, the Treasury Department, the Internal Revenue Service, and the Pension Benefit Guaranty Corporation. ERISA establishes myriad responsibilities for the fiduciaries of these benefit plans, including the twin duties of prudence and loyalty encapsulated in section 404(a) of ERISA.4 That section states, in part: a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and--
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims . . . .
ERISA permits plan participants, beneficiaries, the Labor Department, and other plan fiduciaries to sue for breach of these fiduciary duties.5 In recent years, there has been a tsunami of litigation, ostensibly brought on behalf of plan participants, attacking all manner of decisions made by plan fiduciaries and plan sponsors. To name a few examples, these lawsuits have challenged decisions such as which recordkeeper was retained, which investment funds were offered, how plan forfeitures were used, which annuity provider was selected in a pension risk transfer transaction, and the actuarial assumptions used by defined benefit plans to convert benefits between different annuity types.
ERIC has no quarrel with plan participants pursuing well-founded claims and vindicating their rights in court. However, the past 15 years have seen a surge in frivolous cases not brought to vindicate rights, but instead too often cynically brought by opportunistic lawyers to extract settlements from deep pocketed corporate plan sponsors. In too many of these cases, the actual merits of the suit are not relevant to the settlement value paid in order to avoid the cost and disruption of continuing litigation. And because the federal courts have not spoken uniformly about what a plaintiff must allege to survive a motion to dismiss, these cases unfortunately sometimes become prolonged and expensive.
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3 According to the latest available Federal Reserve data, there are about 136 million private sector workers, on a seasonally adjusted basis. https://fred.stlouisfed.org/series/USPRIV (updated Sept, 5, 2025). According to Bureau of Labor Statistics Data, approximately 70 percent of private sector workers have access to a defined contribution retirement plan. "Employee Benefits in the United States, March 2025" available at https://www.bls.gov/ebs/publications/employee-benefits-in-the-united-states-march-2025.htm (updated September 2025).
4 Codified at 29 U.S.C. Sec.1104. ERISA section numbers will generally be used in lieu of U.S. Code sections throughout.
5 ERISA Sec.502(a)(2); see also ERISA Sec.409.
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Litigation Has Skyrocketed, Threatening ERISA's Underlying Premise that Employers Should Be Encouraged to Offer Benefits
As this Subcommittee well knows, employers are not required to establish employee benefit plans, but public policy has taken pains to encourage the practice.6 Indeed, ERISA reflects a "careful balancing" between ensuring employees receive their promised benefits and encouraging employers to create and maintain benefit plans in the first place.7 As the Supreme Court has stated, Congress endeavored "not to create a system that is so complex that administrative costs, or litigation expenses, unduly discourage employers from offering [ERISA] plans in the first place."8 This balance has served employees and retirees very well.9 ERISA provides the opportunity for judicial remedies in those cases where plan fiduciaries neglect their legal obligations to workers and retirees, cause losses to plan participants, or unscrupulously leverage the plan for self-dealings. These are the situations ERISA was designed to address.
Nevertheless, over the past 15 years, the plaintiffs' bar has exploited ERISA's civil enforcement provisions as a weapon by opportunistically attacking large plan sponsors and fiduciaries in a systematic way. According to a Supreme Court brief recently filed by Encore Fiduciary, a fiduciary liability insurance underwriter, since 2016, over one half of plans with more than $1 billion in assets have been targeted by at least one excessive fee or investment performance lawsuit.10 Plans with $500 million or more in assets have close to a 10% chance of being sued in a given year.11 There are hundreds of lawsuits, dreamed up by attorneys that use allegations that are bare-bones and amenable to nearly identical allegations applicable to a multitude of companies.
The playbook followed by plaintiffs' firms in these cases is both enterprising and deeply unfortunate.
* First, identify virtually any set of decisions that many plans must make where there are multiple market actors: for example, plan recordkeeping, investments available on a 401(k) menu, or the selection of an annuity provider in the case of a defined benefit plan pension risk transfer.
* Second, identify any basis where the options available in the market differ, whether by price, risk, or service.
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6 E.g. Lockheed Corp. v. Spink, 517 U.S. 882, 887 (1996).
7 Conkright v. Frommert, 559 U.S. 506, 517 (2010).
8 Varity Corp v. Howe, 516 U. S. 489, 497 (1996).
9 For example, workers hold around $9 trillion in 401(k) plan assets. Investment Company Institute, "401(k) Resource Center, https://www.ici.org/401k.
10 Brief of Encore Fiduciary as Amicus Curiae in Support of Petitioners, Parker-Hannifin Corp., et al v. Johnson (May 21, 2025), available at https://www.supremecourt.gov/DocketPDF/24/24-1030/359296/20250521120726513_250511a%20AC%20Brief%20for%20efiling.pdf.
11 Id.
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* Third, argue (oftentimes purely in hindsight) that the decision made by the plan fiduciaries was imprudent, even without any particularized evidence that the plan fiduciaries had a flawed process or were cavalier with plan assets and often without any evidence that plan participants even suffered a meaningful, cognizable harm.
* Fourth, identify a set of companies with passably similar plans such that cookie-cutter lawsuit complaints can be drafted with minimal defendant-specific research and optimize the target list for potential settlement value to focus on sophisticated companies with deep pockets and reputations to protect.
* Fifth, after filing suit, threaten to impose hundreds of thousands - even millions - in legal fees related to discovery, motion practice, and ultimately damages, if defendants refuse to accede to unreasonable settlement demands.
* Sixth, collect attorneys' fees as a result of a settlement, often 30 percent or more, while relegating plan participants (especially in plans with many participants) individually to receiving only nominal amounts.
That sixth and final point, above, ought to be particularly concerning to this Subcommittee. There are dozens of major settlements annually, amounting to hundreds of millions of dollars each year.12 And while some class action settlements are large, many result in incredibly small recoveries for actual plan participants, after attorney's fees, expenses, and payments to the named plaintiffs. For example, one suit alleging excessive fees against a large employer settled for $1.35 million after four years of hard-fought litigation.13 After attorneys' fees and expenses, the 50,000 plan participants averaged a recovery of less than $20 each.14
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Abusive Litigation Distorts Plan Decisions and Does Not Benefit Plan Participants
Employers offer benefit plans for a variety of business-related reasons, such as attracting and retaining talent and improving the productivity of workers. The costs of providing these benefits should be predictable and oriented towards delivering value: for example, the actual cost of employer contributions to a 401(k) plan (e.g., the employer match), the cost of medical claims, or the cost of engaging necessary plan service providers. The litigation epidemic disrupts this calculus, introducing a host of inefficiencies and externalities into the benefits ecosystem.
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12 D. Aronowitz & K. Jozwiak, PlanAdviser, 401(k) Excessive Fee Litigation Spiked to 'Near Record Place' in '24 (Jan. 13, 2025), https://www.planadviser.com/401k-excessive-fee-litigation-spiked-near-record-pace-24.
13 Alex Ortolani, Salesforce Settles 401(k) Suits for $1.35 Million, PLANADVISER, available at https://www.planadviser.com/salesforce-settles-401k-suits-1-35m (Sept. 23, 2024).
14 The settlement deducted $449,955 in attorneys fees from the $1.35 million settlement fund and authorized up to $150,000 more for expenses. More than 50,000 participants shared the remainder.
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For example:
* Higher insurance costs can lead to worse benefits. Fiduciary liability insurance rates are increasing. This is a pure transaction cost to the plan: workers and retirees realize no benefit from the costs of this coverage. Indeed, litigation risk and inconsistent pleading standards are key factors in rising liability insurance rates.15 To the extent these costs are factored into the overall cost of providing benefits, the economic answer is simple: the value of the remaining benefits will be reduced, likely in the form of reduced employer contributions or lower levels of benefits.
* Litigation is disruptive to the work of corporate benefits professionals. Even large employers do not have vast internal departments to manage their employee benefits operations. Employees already face challenges to do the work of managing complex, valuable benefits programs: engaging and overseeing vendors, monitoring results, and interacting with the workforce to ensure that health and retirement plans are delivering the value to workers that the business demands. Lawsuits are incredibly disruptive to these operations. Rather than working their day jobs, key employees are forced to spend countless hours gathering documents, preparing for depositions, and talking to outside counsel that charge many hundreds of dollars an hour. All this in the context of lawsuits that amount to fishing expeditions in cases that do not even plausibly allege identifiable, material harm.
* Fear of litigation can distort plan decision-making. When a plan fiduciary is deciding what plan services to contract for, what investment funds to offer, or some other aspect of plan administration, the sole relevant legal standard is whether the decision is prudent under ERISA. And by and large, most plan fiduciaries are appropriately guided by this standard. However, it would be naive to think that, today, plan fiduciaries do not also have in the back of their mind the litigation risks attendant to virtually any decision of consequence in this environment, such as using a service provider that is not the absolutely cheapest available in the market but that offers enhanced valuable services that justify the added expense. This countervailing pressure is at odds with fiduciary obligations.
* Rampant litigation threatens to weaken the system. If a key purpose of ERISA and the myriad tax incentives offered under the Internal Revenue Code is to encourage plan sponsorship, it is counterproductive to have a governing legal regime that introduces litigation risk with virtually any decision. Unfortunately, some employers may decide the costs and risk of offering a defined contribution plan is simply not worth it, which would be a disaster for retirement security. Hence, reform is absolutely necessary.
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15 See e.g. https://www.wtwco.com/en-us/insights/2025/01/fiduciary-liability-a-look-ahead-to-2025 (predicting higher insurance rates if the plaintiffs prevail in the Cornell case, which they subsequently did).
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Congress Should Propose Reasonable Initial Reforms to Provide Clarity to ERISA Litigation
ERIC strongly supports legislation to address the litigation epidemic in a responsible, balanced fashion. Such legislation should incorporate several modest but very important changes, which would ensure that meritorious ERISA cases may continue to be brought, while weeding out those founded on pro forma cookie-cutter allegations. Among the improvements that Congress should consider: (i) requiring a plaintiff, in a case alleging that a contract between a plan and a plan service provider constituted a prohibited transaction under ERISA Sec.406(a)(1)(C), to allege with specificity why that arrangement does not meet the exemption under ERISA Sec.408(b)(2) for necessary and reasonable arrangements with service-providers, (ii) requiring a plaintiff, in a case alleging that the plan paid too much for plan services (whether for recordkeeping, investment management, or any other services), to set forth in the complaint a meaningful cost comparison supporting the claim, and (iii) providing for a stay of discovery (with appropriate exceptions) in ERISA lawsuits. The ERISA Litigation Reform Act, recently introduced by Representative Fine, is an important first step--one which ERIC strongly supports.
These commonsense reforms are discussed in more detail below.
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Addressing the Pleading Standard for Claims Predicated on ERISA Sec. 406(a)(1)(C)
The Supreme Court's recent decision in Cunningham v. Cornell University16 is the quintessential example of a counterproductive court decision that could easily be addressed legislatively to restore balance and reduce ultimately meritless litigation. That case addressed what a plaintiff must plead in a suit alleging a "prohibited transaction" under ERISA with respect to plan services. At issue was section 406(a)(1)(C) of ERISA, which prohibits a plan fiduciary from engaging in a transaction if the fiduciary "knows or should know that such transaction constitutes a direct or indirect-- ... furnishing of goods, services, or facilities between the plan and a party in interest."17 Notably, ERISA includes in its definition of party in interest any person who provides services to a plan.18 Accordingly, on its face, section 406(a)(1)(C) presumptively makes all contracts with plan service providers illegal prohibited transactions. However, section 408(b)(2) exempts transactions from this prohibition so long as the transaction is necessary for the operation of the plan and the plan pays only "reasonable compensation" for the services.19
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16 Cunningham v. Cornell Univ., 604 U.S. 693 (2025).
17 ERISA Sec.406(a)(1)(C).
18 ERISA Sec.3(14)(B).
19 Specifically, section 408(b)(2)(A) provides:
The prohibitions provided in section 406 ... shall not apply to any of the following transactions:
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(A) Contracting or making reasonable arrangements with a party in interest for office space, or legal, accounting, or other services necessary for the establishment or operation of the plan, if no more than reasonable compensation is paid therefor.
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In the Cornell case, the Supreme Court held that the exemptions under section 408 of ERISA were affirmative defenses and that accordingly a plaintiff need only plausibly allege the elements of a prohibited transaction under section 406. As a result of Cornell, a plaintiff challenging a plan's engagement of a service provider need only allege the elements of section 406(a)(1)(C); it need not address in its pleading any of the statutory exemptions--even the obvious one in section 408(b)(2). The Supreme Court reached this result based on what it determined to be the structure of the statute and non-ERISA law relating to statutory exceptions to rules of general applicability. In holding that the exemptions to the prohibited transaction rules are affirmative defenses, the Court notably acknowledged that concerns about resultant baseless litigation raised by respondent Cornell University and various amici, including ERIC,20 calling those concerns "serious." [I]f plaintiffs must plead only that a transaction barred by 1106(a)(1)(C)'s plain text occurred, respondents argue, plaintiffs could too easily get past the motion-to-dismiss stage and subject defendants to costly and time-intensive discovery. Such meritless litigation, respondents claim, would harm the administration of plans and force plan fiduciaries and sponsors to bear most of the associated costs. These are serious concerns but they cannot overcome the statutory text and structure.21 The concurring opinion was even stronger in explaining the practical disadvantages of the decision:
The upshot [of the Court's decision] is that all that a plaintiff must do in order to file a complaint that will get by a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to allege that the administrator did something that, as a practical matter, it is bound to do.... Yet under our decision that is all that a plaintiff must plead to survive a motion to dismiss. And, in modern civil litigation, getting by a motion to dismiss is often the whole ball game because of the cost of discovery. Defendants facing those costs often calculate that it is efficient to settle a case even though they are convinced that they would win if the litigation continued.22 Recognizing the real-world implications of its decision, the Court identified some "tools" that it believed might offer solace to defendants. Respectfully, none of these is truly workable. The Court identified the possibility that a court can order a plaintiff to file a response to the defendants' answering affirmative defense,23 but this is not automatic; a defendant would have to move for such relief, adding cost and delay to the case. The Court also suggested that another limitation on meritless cases is the fact that plaintiffs need to have suffered harm--to have standing under Article III--in order for the case to continue,24 but here again this requires a motion on the part of defendants to bring the issue before the court, again adding cost and delay. The Court also suggested that lower courts could allow targeted early discovery on the issue of an available exemption,25 something that also would add to expense and lead to delay in weeding out a case that lacks merit. And finally, the Court cited the possibility of sanctions under Rule 11 of the Federal Rules of Civil Procedure, and the imposition of attorneys' fees under section 502(g) of ERISA26 as a possible brake on meritless cases. These possibilities exist currently and, needless to say, have not tamed the wave of meritless litigation.
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20 See Joint Trades Brief as Amici Curiae in Support of Respondents, Cunninham v. Cornell Univ. (available at https://www.supremecourt.gov/DocketPDF/23/23-1007/336522/20250103141607914_Cunningham%20Amicus%20Brief.pdf.
21 Cunningham, supra note 16, at 708 (emphasis added).
22 Id. at 710 (Alito, J. concurring) (emphasis added).
23 Id. at 708.
24 Id.
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The regime created by the Cornell decision creates a double-bind for plan fiduciaries any time they consider contracting with a service-provider, such as an investment consultant, investment manager, or recordkeeper: either they engage the service-provider, which is presumptively a prohibited transaction and the case cannot be dismissed based on the pleadings, or they undertake all relevant plan-related services themselves and risk a suit challenging their prudence in not hiring a specialized expert. And let's be clear--the ability to pair a prohibited transaction claim under section 406 with a breach of prudence claim under section 404 adds nothing to a plaintiff's case other than an in terrorem value. The relief under both sections is that set forth in section 502 and section 409--making the plan whole for any losses. If a court found there to have been a prohibited transaction, that transaction would need to be reported on the plan's Form 5500 and the fiduciary would need to pay an excise tax on the "amount involved."27 In short, the prohibited transaction claim simply serves to turn up the heat on plan defendants in the hopes of increasing the likelihood of a settlement and increasing the settlement amount.
As a result of the Cornell case, there are now no limits on the number of lawsuits that can be brought on the basis of engaging a service provider: these relationships are publicly disclosed in plans' mandatory Annual Return/Report (Form 5500) filings with the Department of Labor.28 Information on plan costs charged to participant accounts is described in the fee-and-expense disclosure furnished each year to plan participants.29 Each regulatory filing and participant disclosure is a potential roadmap for an opportunistic plaintiffs' firm looking to extract a recovery or unlock burdensome discovery. This is the case even if there is no evidence that the compensation paid was unreasonable. That is flatly inconsistent with the Supreme Court's direction to lower courts to give "due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise."30
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25 Id. at 709.
26 Id.
27 E.g. 26 U.S.C. Sec.4975.
28 Dep't of Labor, "Form 5500 Series," available at https://www.dol.gov/agencies/ebsa/employers-and-advisers/plan-administration-and-compliance/reporting-and-filing/form-5500 ("Schedule C - Service Provider Information").
29 29 C.F.R. Sec.2550.404a-5. This annual disclosure document also includes information on plan investment fund performance.
30 Hughes v. Nw. Univ, 595 U.S. 170, 177 (2022). See Joint Trades Brief (including ERIC) as Amici Curiae Supporting Respondents, Hughes v. Nw. Univ., No. 19-1401 (Oct. 28, 2021) (available at https://www.eric.org/wp-content/uploads/2021/12/Chamber-Amicus-Brief-Hughes-v.-Northwestern.pdf).
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Legislation, such as the aforementioned ERISA Litigation Reform Act, can and should correct this absurd and unnecessary result. A plaintiff alleging that a plan fiduciary entered into an arrangement with a party in interest that violates the prohibited transaction rules should be required also to allege facts that the transaction was not exempt under the statute's "reasonable compensation" exception. This would weed out those suits that merely allege that a plan fiduciary engaged a plan service provider without plaintiffs having any basis for claiming that the contract was unnecessary or that the compensation paid was unreasonable. In doing so, it would save millions of dollars in legal fees, discovery costs, and wasted employee time, ultimately to the benefit of workers and retirees.
Legislation correcting the result in Cornell would not be the first time that Congress addressed a Supreme Court decision that upended a component of the benefits system. For example, in John Hancock Mutual Life Insurance Company v. Harris Trust & Savings Bank, the Court considered whether "excess" funds in an insurance company's general account were ERISA plan assets, subjecting the insurance company to ERISA fiduciary duties.31 The insurer, John Hancock, argued that the funds were part of a "guaranteed benefit policy," and therefore exempt. The district court agreed with John Hancock, but the Second Circuit reversed, holding the excess assets to be ERISA plan assets. The Supreme Court agreed with the circuit court.
In its amicus brief, the Department of Labor argued:
"[T]he disruptions and costs [of holding insurance companies to be fiduciaries under participating group annuity contracts] would be significant, both in terms of the administrative changes the companies would be forced to undertake (e. g., segregation of plan-related assets into segmented or separate accounts, and re-allocation of operating costs to other policyholders) and in terms of the considerable exposure to the ensuing litigation that would be brought by pension plans and others alleging fiduciary breaches.'"32 Similar to the majority opinion in Cornell, the Court in Harris Trust conceded the point, but argued its hands were tied, noting: "These are substantial concerns, but we cannot give them dispositive weight. The insurers' views have been presented to Congress and that body can adjust the statute."33 Congress did act a few years later, requiring the Labor Department to issue regulations to smooth the transition and avoid disruption.34 In a similar way, Congress now could address the "serious concerns" caused by the Cornell decision.
* * *
31 John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510 U.S. 86 (1993).
32 Harris Trust, at 110 (quoting brief).
33 Id. (citations omitted).
34 Sec.146 of P.L. 104-188 (1996).
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Clarifying the Pleading Standards for Breach of Fiduciary Duty Cases
Second, Congress should clarify the pleading standards for a lawsuit alleging a plan paid excessive fees for plan services. Many in the employee benefits community had hoped that the Supreme Court would resolve the question of ERISA pleading standards in the 2022 Northwestern University case.35 Safe to say, the Court's decision in that case did not definitively settle the issue. In the absence of authoritative guidance, the appellate and district courts have continued to adopt various approaches. This confusion has bred not only unpredictability, it has also created an incentive for entrepreneurial forum shopping.36 Forum shopping is a real risk in the context of ERISA lawsuits alleging breach of fiduciary duty in light of ERISA's liberal venue provision.37 Nonetheless, certain principles can be distilled and should be legislatively codified. Where ERISA plaintiffs attempt to plead wrongdoing based on circumstantial facts, the Supreme Court has specifically instructed lower courts to apply "careful, context-sensitive scrutiny" to "divide the plausible sheep from the meritless goats."38 In the Northwestern case, the Court also acknowledged that "the circumstances facing an ERISA fiduciary will implicate difficult tradeoffs," and advised lower courts to "give due regard to the range of reasonable judgments a fiduciary may make based on her experience and expertise" in evaluating whether a claim is plausible.39 In these cases, many courts are relying on the "meaningful benchmark" analysis articulated by the Eighth Circuit.40 Too often, however, the plaintiffs' bar launches these suits by choosing inapt comparators. For example, comparing the fees charged by a target date mutual fund to the fees charged by an S&P 500 index fund is not an appropriate comparison, given different risk profiles and investment purposes. Similarly, comparing investment management fees for funds that use an "active" investment strategy, where the fund manager is seeking to outperform a benchmark through stock selection, and a "passive" strategy, where the manager is seeking simply to match the benchmark, is not a meaningful comparison.
Legislation should resolve in a balanced, reasonable way the ambiguities lingering in the lower courts that continue to be exploited by the plaintiffs' bar.
* * *
35 Hughes v. Nw. Univ., 595 U.S. 170 (2022).
36 For a fuller discussion, see Joint Trades Brief (including ERIC) as amici curiae in support of Defendants-Appellee's petition for rehearing en banc, Johnson v. Parker-Hannifin Corp, No. 21-cv-256 (6th Cir.) (Dec. 23, 2024), available at https://www.uschamber.com/assets/documents/U.S.-Chamber-Coalition-Amicus-Brief-Johnson-v.-Parker-Hannifin-Sixth-Circuit.pdf.
37 See ERISA Sec.502(e)(2) (permitting suit in federal district court "in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found).
38 Fifth Third Bancorp v. Dudenhoeffer, 573 U.S. 409, 424-25 (2014).
39 Hughes, 142 S. Ct. at 742
40 Meiners v. Wells Fargo & Co., 898 F.3d 820 (8th Cir. 2018); see also Matney v. Barrick Gold of N. Am., 80 F.4th 1136 (10th Cir. 2023); Joint Trades Brief (including ERIC), Matney v. Barrick Gold of N. Am., No. 2:20-cv-275-TC-CMR (10th Cir.) (filed 11/4/2022), available at https://www.eric.org/wp-content/uploads/2022/11/FS_Barrick-Gold-Amicus-Brief.pdf.
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For example, if a plaintiff wants to allege the plan fiduciaries breached their duties of prudence with respect to the fees paid to plan service-providers (be they investment advisors, investment managers, plan recordkeepers, or others), legislation could require the plaintiff to:
* Plausibly allege a meaningful cost comparison. That means there should be some plausible allegation that a meaningful number of comparable plans paid materially less for similar services, and that such lower-cost services were reasonable to obtain.
* Make a context-specific cost comparison.
* In the case of a suit alleging that investment management fees were imprudently expensive, support the cost comparison with facts plausibly alleging that the alternative investment options on which plaintiffs rely have similar investment strategies, similar investment objectives, or similar risk profiles.
In our view, these are reasonable criteria that a plaintiff ought to meet in order to sustain a claim alleging imprudence with respect to the cost for plan services. And those criteria should easily be met where there is indeed a suspected breach. The desirable standard effectively boils down to a reasonable requirement: compare apples to apples, don't cherry-pick, and compare in context. This will not shut out suits with appropriate comparisons.
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Staying Discovery Until a Plausible Claim is Sustained
Third, Congress could consider legislation to stay discovery and other proceedings while there is a motion to dismiss pending or a reply to an answer pending. We applaud inclusion of such a provision in the ERISA Litigation Reform Act. This is very important, as discovery is a costly and burdensome process.41 It should be reserved for those cases in which a breach of fiduciary duty can be plausibly alleged. Prior to forcing defendants to incur these costs and burdens, the lawsuit generally should first survive a motion to dismiss. Decisions on those motions can take six months, or even 18 months. Without a formal stay, defendants are at risk of having to respond to discovery for years, particularly if the plaintiffs are given leave to replead the complaint after the initial grant of a motion to dismiss.
That is why an automatic stay is so crucial. The ERISA Litigation Reform Act also includes protections similar to the provisions of the Private Securities Litigation Reform Act.42 These protections include permitting a court to permit particularized discovery if necessary to preserve evidence or to prevent undue prejudice. Additionally, during the stay, parties would be generally required to treat documents, data compilations, and relevant tangible objects as though they were the subject of a continuing request for the production of documents. This would avoid prejudice to any party during the stay. In total, this change could prevent the expenditure of hundreds of thousands of dollars before a court has concluded that the allegations being made are plausible.
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41 This is exacerbated by the Supreme Court's decision in Cornell, which permits discovery in a suit that merely alleges that a plan engaged a service provider, thereby committing a prohibited transaction, without grappling with the myriad exemptions.
42 15 U.S.C. Sec.78u-4(b)(3).
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This is money that would be better spent hiring workers, making products and providing services, and maintaining and even improving benefits.
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Other Proposals
Congress should also consider other measures to improve the landscape. For example, Congress could consider applying reasonable, heightened pleading standards to all cases brought under section 404(a)(1)(B), such as cases alleging that investment funds offered on a 401(k) menu underperformed, or cases alleging defined benefit plan sponsors breached duties when engaging in pension risk transfer transactions, among others. Congress could also address the split in the federal appellate courts about which party has the burden of proving that a loss suffered by a plaintiff was actually caused by an allegedly imprudent act or omission of a plan fiduciary defendant.
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Conclusion
Large plan sponsors provide health and retirement benefits to tens of millions of their employees and their families. Federal law protects these benefits, but abusive litigation and the lack of clarity about relevant legal standards are among the threats the system faces. Congress has an opportunity to reduce these disincentives, ultimately to the benefit of workers, retirees, and job creators. We look forward to working with members of this Subcommittee, with the Committee on Education and Workforce, with other members of Congress, and with the administration to improve the employee benefits system.
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Original text here: https://edworkforce.house.gov/uploadedfiles/butash_testimony.pdf
American Benefits Council Senior VP Dudley Testifies Before House Education & Workforce Subcommittee
WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Lynn Dudley, senior vice president of global retirement and compensation policy for the American Benefits Council, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement":* * *
My name is Lynn Dudley, and I am the Senior Vice President, Global Retirement and Compensation Policy, for the American Benefits Council. Thank you for holding this important hearing and for the opportunity to testify.
The ... Show Full Article WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following testimony by Lynn Dudley, senior vice president of global retirement and compensation policy for the American Benefits Council, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement": * * * My name is Lynn Dudley, and I am the Senior Vice President, Global Retirement and Compensation Policy, for the American Benefits Council. Thank you for holding this important hearing and for the opportunity to testify. TheCouncil is a Washington, D.C.-based employee benefits public policy organization. The Council advocates for employers dedicated to the achievement of best-in-class solutions that protect and encourage the health and financial well-being of their workers, retirees and their families. Council members include more than 220 of the world's largest corporations and collectively either directly sponsor or support sponsors of health and retirement benefits for virtually all Americans covered by employer-provided plans.
This hearing comes at a critical time for the private retirement system. Right now, the top issue for our plan sponsor members is the tidal wave of frivolous litigation draining resources away from benefits, inhibiting plan innovation, preventing many new products and services from being offered, and benefiting only the plaintiffs' lawyers.
We strongly support the Committee's attention to this crisis and we look forward to working with the Committee on a solution that restores common sense and curtails the ability of the plaintiffs' bar to benefit at the expense of retirement security.
Where we are today: plaintiffs' lawyers can sue and earn millions in fees without any showing of any ERISA violation or issue.
Today, a plaintiffs' firm can solicit plan participants to sue the plan fiduciary and can file a complaint that simply alleges any one of the following: (1) the plan hired a service provider, (2) plan fees were too high, or (3) a plan's investments did not perform as well as others. Such allegations are simple to make because all plans hire service providers, and there is always some other plan with lower fees (and possibly fewer services or worse investments) or investments with better past performance (and possibly a weaker outlook for the future).
Under the recent U.S. Supreme Court case Cunningham v. Cornell University,/1 a mere statement that a plan has hired a service provider is sufficient to survive a motion to dismiss. This was the case because the Court held that (1) simply hiring any service provider is technically a prohibited transaction even if there is a clearly applicable prohibited transaction exemption by reason of the service provider's fees being reasonable, and (2) a defendant cannot rely on a prohibited transaction exemption to support a motion to dismiss.
Even outside the prohibited transaction regime, with respect to alleged underperformance or fees that are allegedly too high, mere conclusory allegations have been enough in many courts to survive a motion to dismiss. This latter concern is a problem that pre-dated the Cornell decision, so the problem runs much deeper than just that case. That problem is directly attributable to the so-called current-law "inference standard," which allows plaintiffs to survive a motion to dismiss by alleging facts that give rise to an inference that the fiduciary used an improper process. Many courts have interpreted the inference standard to open the floodgates to almost unlimited litigation.
The Supreme Court's Cornell decision will even further exacerbate this problem.
Why is the motion to dismiss stage in litigation so important? Because if the defendants lose the motion to dismiss, the plaintiffs' lawyers (not the participants) have generally won. If a lawsuit survives a motion to dismiss, the next step is discovery, which can cost the plan sponsor many millions of dollars. This puts enormous pressure on the plan sponsor to settle for millions of dollars, to avoid the greater cost and burden of discovery.
This concern about the avalanche of litigation post-Cornell is not only shared by our members, it is also the view of the entire Supreme Court in the Cornell case in the unanimous decision of the Court that put the responsibility for correcting this problem squarely on Congress./2
Lastly, [Defendants] contend that there will be an avalanche of meritless litigation if disproving the applicability of [the relevant statutory exemption] is not treated as a required element of pleading [a prohibited transaction violation based on hiring a service provider]. . . . These are serious concerns but they cannot overcome the statutory text and structure. Here, Congress "set the balance" in "creating [an] exemption and writing it in the orthodox format of an affirmative defense," so the Court must "read it the way Congress wrote it."
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1 145 S. Ct. 1020 (2025).
2 Cornell, 145 S. Ct. at 1031 (internal citations omitted).
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This concern is already materializing. In August, based on Cornell, the U.S. Court of Appeals for the Second Circuit revived a lawsuit against a retirement plan sponsor that had been properly dismissed as baseless in the view of Second Circuit./3
The Second Circuit fully rejected the plaintiffs' claims:
First, Plaintiffs failed to plausibly allege that Defendants imprudently selected and monitored the Plan's investment options because certain investment options underperformed alternatives. . . . Second, the complaint did not plausibly allege that the Committee imprudently monitored fees charged by the Plan's investment advisor and recordkeeper. . . . Third, Plaintiffs argue unpersuasively that they pled circumstantial factual allegations supporting an inference that Defendants employed flawed processes in carrying out their duties.
However, because of Cornell, the Second Circuit was compelled to revive the baseless case, giving the plaintiffs' lawyers the chance to benefit from filing a frivolous suit.
In Cornell, the Supreme Court did go on to suggest a few possible ways to address this avalanche, but even the most promising of the various suggested approaches is "not commonly used," according to the concurring opinion of Justice Alito, joined by Justices Thomas and Kavanaugh./4
District court judges have full discretion not to use it, and, in our experience, it is almost never used. So, there is not a currently workable solution.
This means that the plaintiffs' lawyers walk away with millions of dollars without any showing that the plan did anything wrong - all the plaintiffs' lawyers did was allege that the defendant's plan hired a service provider or another plan paid lower fees or some other investment performed better, without any showing that the fiduciary did anything wrong. And these allegations generally are held to satisfy the sieve-like inference standard. Since the allegations in the different cases are so similar, complaints can be largely reused, making this a low-cost, high-profit business for plaintiffs' lawyers who can and do file multiple lawsuits using extremely similar complaints.
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3 Collins v. Northeast Grocery, 2025 U.S. App. LEXIS 20982 (2d Cir. 2025).
4 The opinion states: "For instance, if a fiduciary believes an exemption applies to bar a plaintiff 's suit and files an answer showing as much, Federal Rule of Civil Procedure 7 empowers district courts to 'insist that the plaintiff' file a reply "'put[ting] forward specific, nonconclusory factual allegations'" showing the exemption does not apply." The concurring opinion states that this is the most promising approach to try to avoid the clear problems facing ERISA plans under this opinion, and goes on to say: "It does not appear that this is a commonly used procedure, but the Court has endorsed its use in the past. . . . District courts should strongly consider utilizing this option--and employing the other safeguards that the Court describes--to achieve 'the prompt disposition of insubstantial claims.' . . . Whether these measures will be used in a way that adequately addresses the problem that results from our current pleading rules remains to be seen." In other words, our best hope is a tool not commonly used by the courts.
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ERISA does not require that fiduciaries make the "best" choice with hindsight; ERISA appropriately requires fiduciaries to use a prudent process to pick investments and manage fees. Under the approach being used today, plaintiffs' lawyers do not need to know if the fiduciary's process has violated the law and thus have no incentive to go beyond making a statement or claim. Because, again, they can put enormous financial pressure on companies just by getting past the motion to dismiss with boilerplate complaints.
Participants do not benefit, only their lawyers benefit: for example, $23 million for lawyers versus $153 for participants.
Over the past decade, retirement plan sponsors have increasingly become the targets of large and expensive class-action litigation. Hundreds of lawsuits have been filed during this period, and in just 2024 alone, for example, 65 retirement plan sponsors were sued because of their voluntary retirement plan offerings - up from roughly 50 lawsuits in 2023 - while in 2022, nearly 90 lawsuits were filed./5
Also, as noted in a recent amicus brief:
Since 2016, over half of plans with $1+ billion in assets have been targeted by at least one excessive fee lawsuit. Some have been sued multiple times./6
There is an illusion that these cases benefit the plan participants. The clear facts, however, show that the cases do not benefit the participants. For example, from the period of 2009 to 2016, attorneys representing plaintiffs in breach of fiduciary duty lawsuits are estimated to have collected roughly $204 million for themselves, while only securing an average per-participant award of $116 (not million, just $116)./7
It is very simple to look at almost any settlement and, with simple arithmetic, figure out that the plaintiffs' lawyers are the only ones truly benefiting. For example, just recently, a case was settled (with final court approval)/8 for what the plaintiffs' lawyers called "the largest-ever ERISA settlement alleging breach of fiduciary duty for failure to remove underperforming investment options." That statement could be misread as indicating that participants are really being helped by the settlement, but the fact is that the only ones really benefiting are the plaintiffs' lawyers. Under the settlement, as approved by the court, the plaintiffs' lawyers are receiving a third of the recovery--$23 million--while the 300,000 participants will get an average of $153 (the remaining $46 million spread among 300,000 participants).
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5 Lawrence Fine & John M. Orr, Fiduciary Liability: A look ahead to 2025, Willis Towers Watson (Jan. 29, 2025), https://www.wtwco.com/en-us/insights/2025/01/fiduciary-liability-a-look-ahead-to-2025.
6 https://www.supremecourt.gov/DocketPDF/23/23-1007/336485/20250103100650208_250101a%20AC%20Brief%20for%20efiling.pdf
7 Thomas R. Kmak, Protect Yourself at All Times - Emphasize Quality, Service and Value Before Fees, Nat'l Inst. of Pension Administrators (Apr. 11, 2016), https://www.nipa.org/blogpost/982039/244084/ProtectYourself-at-All-Times--Emphasize-Quality-Service-and-Value-Before-Fees
8 Order Granting Motion for Final Approval of Class Action Settlement, Final Judgment and Order of Dismissal With Prejudice, Snyder v. UnitedHealth Group, No. 0:21-cv-01049-JRT-DJF (D. Minn. Jun. 24, 2025); see also Judgment in a Civil Case [Regarding Attorneys' Fees], Snyder v. UnitedHealth Group, No. 0:21-cv-01049-JRT-DJF (D. Minn. Jun. 25, 2025).
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Harm to plan participants and retirement security.
The Council recently conducted an informal survey of our members on the effects of the avalanche of litigation. The results are very concerning./9
For example:
* Almost 89% of defined contribution plan sponsors report that the risk of litigation is very, or at least a somewhat, significant factor affecting their decisions to enhance services or provide different investment options.
* Almost 25% have decided against providing more assistance to participants due to the litigation risk.
* Over 43% have decided against offering lifetime income options due to the litigation risk.
* Almost 29% have decided against offering services or investment options simply because other similar plans were not doing so, making the additional services or options vulnerable to litigation.
Supreme Court standard (in cases where a prohibited transaction is not alleged).
As noted, under Cornell, in a prohibited transaction case, all the plaintiff must do to survive a motion to dismiss is state that a plan has hired a service provider. Obviously, this needs to be reversed, as the Supreme Court itself admitted. We strongly commend Congressman Randy Fine for introducing his bill (H.R. 6084) to reverse Cornell with respect to the hiring of service providers, common-sense legislation that helps plans and participants and should be bipartisan.
But, even in fiduciary breach cases pre-Cornell, courts were allowing plaintiffs to survive a motion to dismiss based on conclusory statements or inapt comparisons to other plans' fees or investment performance.
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9 https://americanbenefitscouncil.org/pub/?id=80095a3f-cbb8-e46c-854f-a475d2c68358
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This also has to be addressed by holding lower courts to the standard articulated by the Supreme Court. The Supreme Court has been clear. To survive a motion to dismiss:
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations./10
Pleading standards proposal to address retirement plan litigation crisis.
The American Benefits Council's proposal would state that in order to survive a motion to dismiss, a complaint must contain specific facts regarding the use of an imprudent process by the plan fiduciary (or specific facts showing an impermissible conflict of interest). Conclusory allegations that the plan fiduciary has violated the law will no longer be a means for plaintiffs' lawyers to benefit at the expense of the retirement plan system by relying on the overly broad inference standard.
Like the Fine bill, our proposal would also provide that plaintiffs cannot avoid this rule by simply asserting that the plan fees paid to service providers are automatically a prohibited transaction, so that all service provider fee cases can automatically survive a motion to dismiss and go straight to discovery. That is the untenable position imposed on the system by the Cornell case. That means that, solely by reason of hiring a recordkeeper, for example, all plans could be sued and the case would go directly to discovery.
We look forward to discussing the above solution and other ideas that will effectively address the retirement crisis facing our private retirement plan system.
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10 Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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Original text here: https://edworkforce.house.gov/uploadedfiles/dudley_testimony.pdf
AARP Foundation Senior VP Rivera Testifies Before House Education & Workforce Subcommittee
WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following written testimony by William Alvarado Rivera, senior vice president for litigation at AARP Foundation, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement":* * *
Government Affairs Director, Financial Security (cflyntbarr@aarp.org)Chairman and Members of the Subcommittee:
Thank you for inviting me to testify about the Supreme Court's recent decision in Cunningham v. Cornell. This case is more than ... Show Full Article WASHINGTON, Dec. 11 -- The House Education and Workforce Subcommittee on Health, Employment, Labor and Pensions released the following written testimony by William Alvarado Rivera, senior vice president for litigation at AARP Foundation, from a Dec. 2, 2025, hearing entitled "Pension Predators: Stopping Class Action Abuse Against Workers' Retirement": * * * Government Affairs Director, Financial Security (cflyntbarr@aarp.org)Chairman and Members of the Subcommittee: Thank you for inviting me to testify about the Supreme Court's recent decision in Cunningham v. Cornell. This case is more thana technical interpretation of ERISA--it is a reaffirmation of Congress's intent to protect the retirement security of millions of American workers.
My name is William Alvarado Rivera, and I serve as Senior Vice President for Litigation at AARP Foundation, the charitable affiliate of AARP. I am honored to be here to testify on behalf of AARP, which advocates for the 125 million Americans age 50 and older. AARP supports these efforts, as retirement security is a core priority for our members and vital to their well-being.
At AARP Foundation, I lead our legal advocacy efforts to protect the rights and advance the interests of people age 50 and older. My team litigates and files amicus briefs in federal and state courts across the country, addressing areas including employment discrimination, employee benefits, housing, consumer fraud, health care, and public benefits. Prior to joining AARP Foundation, I litigated and held senior legal and policy roles at the U.S. Department of Justice and the U.S. Department of Health and Human Services, respectively.
Today, I will focus on the critical importance of ensuring that retirement beneficiaries can protect their benefits and rights under ERISA, reflected in the Supreme Court's unanimous decision in Cunningham v. Cornell University, a case in which we filed an amicus brief in support of the plan participants./1
(See Also Appendix 1.) The Court's 9-0 decision reaffirms ERISA's foundational promise: that plan fiduciaries must act prudently and loyally in managing retirement assets, and beneficiaries must have meaningful access to the courts to enforce those duties. I will explain the case's significance for everyday retirees and why Congress should only work to uphold the standard announced in Cunningham v. Cornell. I will also address unfounded concerns that the Court's ruling will lead to an increase in "frivolous" lawsuits and provide data on ERISA fiduciary litigation trends to demonstrate that the system is functioning as intended-- providing accountability and protecting benefits without overwhelming the courts.
The Retirement Crisis and ERISA's Role in Protecting Beneficiaries America faces a retirement crisis. According to AARP's Financial Security Trends Survey, as of January 2025, nearly seven in ten (69%) adults ages 50-64 are worried about having enough money to be financially secure in retirement./2
The shift from traditional defined benefit pensions to defined contribution plans like 401(k) plans requires individuals to now bear greater risk and responsibility for their retirement security. ERISA, enacted in 1974, was designed to safeguard these retirement assets by imposing strict fiduciary duties on plan managers: they must act solely in the interest of participants and beneficiaries, with prudence, loyalty, and care. To be clear, the shift from defined benefit plans to defined contribution plans makes this standard more important than ever as everyday Americans now rely on financial professionals to safeguard their retirement nest egg built up through a lifetime of hard work.
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1 Louis Lopez et al., "Brief of Amici Curiae AARP and AARP Foundation in Support of Petitioners," November 26, 2024, https://www.aarp.org/content/dam/aarp/aarp_foundation/2024/CunninghamBrief.pdf.
2 Kathi Brown, "AARP Financial Security Trends Survey, January 2025," May 2025, https://doi.org/10.26419/res.00525.049.
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For everyday retirees, these protections are not abstract. They mean the difference between a dignified retirement and financial hardship. Fiduciary breaches, such as offering high-fee investment options or failing to monitor plan expenses, can erode savings by tens of thousands of dollars over a lifetime. When fiduciaries prioritize their own interests or those of service providers, beneficiaries suffer lower returns and higher costs. It can cost them 20% or more of their nest egg--that's tens of thousands of dollars for the typical retirement saver./3
ERISA's private right of action under Section 502(a) is a critical part of ERISA's enforcement framework.
It empowers participants to go to court to remedy breaches of fiduciary duties, seeking to restore benefit losses and ensure accountability.
Prohibited Transactions and the Supreme Court's Unanimous Decision in Cunningham v. Cornell
Let me begin with the core issue. ERISA's prohibited transaction rules are designed to prevent conflicts of interest and ensure fiduciaries act solely in the interest of plan participants. For decades, however, many courts imposed a heightened pleading standard--requiring plaintiffs not only to allege a prohibited transaction but also to anticipate and negate statutory exemptions that a fiduciary may raise. That approach often shuts the courthouse doors before any meaningful review of fiduciary conduct can occur.
In this case, participants in Cornell's retirement plans alleged that fiduciaries violated Section 406(a)(1)(C) of ERISA by causing the plan to engage in transactions with service providers who were "parties in interest." Specifically, they breached their duties by engaging in prohibited transactions for recordkeeping services, paying these service providers substantially more than reasonable recordkeeping fees.
The Supreme Court unanimously rejected the approach that participants must also negate a potential exemption at the outset. Writing for the Court, Justice Sotomayor made it clear: to state a claim under Section 406(a)(1)(C) of ERISA, a plaintiff need only allege the elements of that provision itself--that a fiduciary knowingly caused the plan to engage in a prohibited transaction with a party in interest. The burden of proving exemptions under Section 408 belongs to the defendant, as Congress intended. These exemptions are affirmative defenses, not pleading hurdles that a participant must first clear before moving forward. The Supreme Court ruling returns to the statutory intent of ERISA, restores the pleading bar for participants, and ensures that fiduciary decisions involving plan assets receive the rigorous review Congress intended.
Justice Alito's concurrence adds a practical note: courts can require plaintiffs to respond to affirmative defenses early, streamlining litigation without sacrificing ERISA's core protections.
The bottom line is this: Cunningham v. Cornell strengthens the promise Congress made when it enacted ERISA--that fiduciaries must act solely in the interest of participants. It ensures that factory workers, truck drivers, construction workers, office workers, teachers, nurses, and countless others have a fair chance to challenge transactions that put their retirement at risk.
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3 The White House, "FACT SHEET: President Biden to Announce New Actions to Protect Retirement Security by Cracking Down on Junk Fees in Retirement Investment Advice," October 31, 2023, https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/31/fact-sheet-president-biden-to-announcenew-actions-to-protect-retirement-security-by-cracking-down-on-junk-fees-in-retirement-investment-advice/.
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Why does this matter? Because ERISA is not just a statute--it is a promise. A promise that when workers put their hard-earned money into retirement plans, those assets will be managed prudently and loyally. If procedural barriers prevent claims from being heard, that promise is broken. Cunningham restores balance between everyday working Americans and large financial firms. It ensures that allegations of conflicted transactions receive judicial scrutiny, rather than being dismissed on technicalities that deny workers their day in court.
The significance of this decision cannot be overstated. For most Americans, their retirement savings represent their life's work as well as sacrifices and a commitment to saving. ERISA's fiduciary duties of loyalty and prudence, reinforced by its prohibited transaction rules, exist to protect those savings from conflicted deals and excessive or opaque fees.
Beneficiaries trust fiduciaries--employers, plan administrators, and service providers--to manage those savings prudently and loyally. When fiduciaries breach that trust, the consequences can be devastating: diminished retirement income, delayed retirement, and create a greater reliance on Social Security and safety net programs.
The Cunningham case involved allegations that Cornell University paid excessive fees to record keepers--fees that were allegedly far above market rates. These costs are ultimately borne by plan participants, reducing their retirement savings. The ability to challenge such transactions is not a matter of legal technicality--it is fundamental to ERISA and a matter of economic fairness.
Thus, for plan participants, the Cunningham decision means greater accountability and transparency. For fiduciaries, it is a reminder: compliance is not optional, and documentation of exemptions is critical. For Congress, it underscores that ERISA's enforcement framework remains vital--and that participants' access to judicial remedies plays a key role in ensuring its effectiveness.
In short, Cunningham v. Cornell is a victory for the principle that retirement security deserves more than lip service. It deserves meaningful enforcement.
Why Congress Should Reject Efforts to Change the Cornell Standard Congress should not tinker with what the Supreme Court unanimously decided in Cunningham v. Cornell. Any legislative attempt to overturn or narrow the holding announced in that case would directly undermine ERISA's core protections and impose greater harm and risk to retirement beneficiaries.
The Cornell Court correctly placed the burden on fiduciaries to defend their actions once a plausible prohibited transaction is alleged. Proposals to shift that burden by requiring plaintiffs to affirmatively disprove potential fiduciary defenses in advance would be contrary to ERISA's broad remedial purpose and to the common law of trusts, which undergirds ERISA's statutory framework.
Requiring that plan participants plead information that lies solely within the control of fiduciaries at the outset of a case improperly shifts the burden in ERISA cases. This will effectively exclude potentially meritorious claims and absolve fiduciaries for breaches of their duties under ERISA.
Under trust law principles embedded in ERISA, fiduciaries bear the burden of proving that their decisions were prudent and loyal once a breach is shown. Shifting this burden to plaintiffs up front would force everyday retirees--many with limited resources and no access to plan records--to disprove complex fiduciary justifications before discovery even begins.
Indeed, the harms to beneficiaries would be profound. Because service provider contracts and fee details are within the defendants' control, it is appropriate that defendants bear the burden to establish a Section 408 exemption. Requiring participants to negate exemptions they cannot access without discovery is fundamentally unfair. A retiree challenging a prohibited transaction would need to gather evidence on the amount of the fees and the nature of the services provided--information typically held by the fiduciary--without the benefit of subpoenas or document production. This would effectively immunize fiduciaries from accountability for imprudent actions, such as failing to address excessive fees on recordkeeping rates. Small-dollar harms, which compound over decades, would become unenforceable. A worker losing hundreds or thousands of dollars annually to excessive fees and costs might never recover, even though across a plan with thousands of participants, the total loss could be in the millions of dollars.
Such a shift would also exacerbate the retirement crisis. Studies show that excessive fees reduce retirement savings by 20-30% over a career./4
If Congress chose to begin shielding fiduciaries from plan-wide challenges, these losses would persist unchecked, disproportionately harming lower- and middle-income workers who rely most heavily on 401(k) plans to meet their basic necessities. The result: delayed retirements, reduced living standards, and increased reliance on public benefits--costs ultimately borne by taxpayers.
The Cornel Court standard is a fundamental feature, not a bug. It ensures fiduciaries manage the entire plan prudently, not just the funds a particular plaintiff happens to own. Congress should preserve this balance, consistent with ERISA's text and the Supreme Court's unanimous interpretation.
Addressing Concerns About "Frivolous" Lawsuits Some defense lawyers and industry voices have claimed that the Cunningham decision will invite a flood of frivolous ERISA lawsuits, burdening plans and fiduciaries. These concerns are overstated and ignore the data. ERISA litigation serves a vital deterrent function, ensuring fiduciaries prioritize beneficiaries' interests. Far from being frivolous, these cases often uncover real harms, leading to reforms like fee reductions and improved investment menus. It is important to note that folks who pursue these cases are doing so in an attempt to recover their money that was siphoned away by those they entrusted to look after it.
Data on ERISA fiduciary-breach litigation--primarily excessive fee and imprudent investment cases--show no explosion of filings. According to industry reports, filings have fluctuated but remained manageable relative to the millions of ERISA plans nationwide. From 2016 to 2023,
approximately 450 such cases were filed, averaging about 56 per year./5
This represents a tiny fraction of the over 800,000 ERISA-covered retirement plans.
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4 Ibid.
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Moreover, the Court in Cunningham highlighted certain existing tools that district courts can use to eliminate meritless claims before they progress to discovery. For example, the Court pointed to Federal Rule of Civil Procedure 7, under which a court can require the plaintiff to file a reply to a defendant's answer. If a plaintiff cannot put forth specific, nonconclusory factual allegations showing that a Section 408 exemption does not apply, the Court explained, a district court can dismiss their suit.
In addition, the Court highlighted that standing under Article III remains a valid basis to dismiss a case, recognizing that its decision does not change the constitutional requirement of a concrete injury to present a justiciable case or controversy. Courts also can order limited or expedited discovery in ERISA prohibited transaction cases that survive motions to dismiss, which would help to mitigate unnecessary litigation expenses. And, of course, the threat of sanctions and fee-shifting under ERISA remain available to deter meritless litigation.
ERISA litigation is not a free-for-all. Courts are fully equipped to manage discovery, apply pleading standards, and dismiss weak claims; strong ones can proceed to fact development. The Supreme Court's decision in Cunningham does not lower the bar--it simply affirms that plan participants have the right to challenge transactions that Congress deemed inherently suspect.
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Conclusion
The Supreme Court's unanimous decision in Cunningham v. Cornell upholds ERISA's promise-- fiduciaries must act solely in the interest of participants and beneficiaries, and conflicted transactions are prohibited unless a valid exemption is proved--and empowers everyday retirees to safeguard their hard-earned savings. By affirming beneficiaries' burden to plausibly allege that a plan engaged in a per se prohibited transaction and requiring the defendant to prove any exemption, it closes gaps that could otherwise allow imprudence to go unchecked, potentially costing retirees billions of dollars. For the average worker, the difference between reasonable and excessive fees and costs across years can be the difference between a secure retirement and a precarious one. This is an especially salient point given the retirement crisis we find ourselves in.
Access to legal remedies is not the enemy of retirement security--it is its safeguard. ERISA's enforcement mechanism relies on the ability of participants to hold fiduciaries accountable. The Department of Labor cannot police every plan; it was never intended to. Indeed, as we noted in our Cunningham brief (at 14):
ERISA expressly empowers four distinct classes of persons--the Secretary of Labor, participants, beneficiaries, and fiduciaries--to bring civil actions for relief when fiduciary duties have been breached in violation of the statute. 29 U.S.C. Sec.Sec. 1132(a)(2), 1109(a). While the Department of Labor (DOL) is tasked with administering ERISA, Congress intended the "principal focus of the enforcement effort" to be civil litigation initiated by all four classes of plaintiffs. H.R. Rep. No. 93-533 (1974).
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5 https://www.carltonfields.com/insights/expect-focus/the-case-of-excessive-fees-supreme-court-to-investigate-pleading-standard-in-erisa-excessive-fee-li
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When participants are denied access to the courts, fiduciary misconduct goes unchecked.
Congress must preserve this standard and reject any efforts to shift burdens onto plaintiffs or limit the ability of participants to enforce their rights. AARP urges the Subcommittee to support the ability of participants to protect their hard-earned life savings under ERISA, ensuring fiduciaries act in beneficiaries' best interests and fostering a more secure retirement system for all Americans.
Thank you for your leadership on this critical issue of protecting the retirement security of the American people. I am happy to answer any questions or provide additional information.
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Original text here: https://edworkforce.house.gov/uploadedfiles/rivera_testimony.pdf
Chincoteague Mayor Bowden Testifies Before House Natural Resources Subcommittee
WASHINGTON, Dec. 10 -- The House Natural Resources Subcommittee on Federal Lands released the following testimony by Chincoteague Mayor Denise Bowden from a Dec. 2, 2025, legislative hearing on the Safe Beaches, Safe Swimmers Act (H.R. 5063):* * *
Assateague Island, VA is such a valuable resource for recreation to not only to our locals but also to our 1.0 million plus visitors each year. Between the golden sands of sunbathing, the rich fishing areas, to the swimmers and surfers to even the beachcombers and bird watchers, the area is populated heavily during peak summer season.
There have always ... Show Full Article WASHINGTON, Dec. 10 -- The House Natural Resources Subcommittee on Federal Lands released the following testimony by Chincoteague Mayor Denise Bowden from a Dec. 2, 2025, legislative hearing on the Safe Beaches, Safe Swimmers Act (H.R. 5063): * * * Assateague Island, VA is such a valuable resource for recreation to not only to our locals but also to our 1.0 million plus visitors each year. Between the golden sands of sunbathing, the rich fishing areas, to the swimmers and surfers to even the beachcombers and bird watchers, the area is populated heavily during peak summer season. There have alwaysbeen lifeguards on Assateague Island, VA for as far back as I can remember to my childhood. They play such a vital role in the safety of those people mentioned above and this past summer it was difficult not having them in place for the whole part of the summer season. They have saved countless lives and have provided first aid in many situations. The nearest rescue squad is on neighboring Chincoteague Island which, while not far away, traffic getting to Assateague Island can make it exceedingly difficult in getting to a patient or drowning victim in a timely manner.
We had people reach out to the town this past summer to let us know that they were rethinking their trip to Chincoteague Island due to the lack of a safe experience at the beach itself. As you know, Chincoteague Island is dependent on tourist dollars along with the surrounding Eastern Shore. We do not want to lose revenue in any circumstances.
The National Park Service ended up funding the majority lifeguard services this past summer with the Town of Chincoteague and Accomack County picking up the rest of the tab for contracted services out of Va Beach, Va to which the town nor the county has been reimbursed. However, an agreement could not be reached until well into the summer season, cutting lifeguard coverage short for most of the summer. We cannot afford to do this again, nor should we have to.
Funding lifeguards is critical; it is paramount and should take precedence for the summer seasons on this federal land. Saving dollars is one thing; saving lives is a whole different story. You cannot put a price tag on someone's life. Especially if they are just trying to enjoy that life sitting on a beautiful beach with their family and friends.
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Original text here: https://docs.house.gov/meetings/II/II10/20251202/118666/HHRG-119-II10-Wstate-BowdenD-20251202.pdf
American Sportfishing Association Pacific Fisheries Policy Director Phillips Testifies Before House Natural Resources Subcommittee
WASHINGTON, Dec. 10 -- The House Natural Resources Subcommittee on Water, Wildlife and Fisheries released the following testimony by Larry Phillips, Pacific fisheries policy director of the American Sportfishing Association, from a Dec. 3, 2025, hearing entitled "Sea Lion Predation in the Pacific Northwest":* * *
Chair Hageman, Ranking Member Hoyle, and Members of the Subcommittee, thank you for the opportunity to testify today. My name is Larry Phillips, and I serve as the Pacific Fisheries Policy Director for the American Sportfishing Association. ASA represents the country's recreational ... Show Full Article WASHINGTON, Dec. 10 -- The House Natural Resources Subcommittee on Water, Wildlife and Fisheries released the following testimony by Larry Phillips, Pacific fisheries policy director of the American Sportfishing Association, from a Dec. 3, 2025, hearing entitled "Sea Lion Predation in the Pacific Northwest": * * * Chair Hageman, Ranking Member Hoyle, and Members of the Subcommittee, thank you for the opportunity to testify today. My name is Larry Phillips, and I serve as the Pacific Fisheries Policy Director for the American Sportfishing Association. ASA represents the country's recreationalfishing industry and the many businesses whose livelihoods depend on healthy salmon and steelhead runs across the Pacific Northwest.
Recreational fishing is part of the identity of this region. From Puget Sound to the Columbia River Basin and along the coasts of Washington and Oregon, salmon seasons support thousands of jobs, strengthen local economies, and carry forward cultural and family traditions.
Nationwide, recreational fishing contributes more than 230 billion dollars annually, and anglers directly invest nearly 2 billion dollars a year into conservation.
For decades, federal, state, and tribal partners - as well as anglers - have invested heavily in salmon recovery through habitat restoration, hatchery modernization, harvest reform, and hydropower mitigation. But one major factor continues to erode those gains: pinniped predation on salmon and steelhead.
Today's pinniped populations are healthy, fully protected, and significantly larger than when systematic surveys began in the 1970s, following passage of the Marine Mammal Protection Act.
While we cannot precisely quantify pre-contact abundance, science shows these populations have rebounded dramatically in the modern era and many stocks are at or above their optimum sustainable population levels. That recovery is a conservation success, but it also means predation pressure on salmon has grown far beyond what recovery efforts were designed to absorb.
In the Columbia River, sea lions that were nearly absent in the 1990s can consume a significant portion - estimated as high as - 40 percent - of the spring Chinook run in a single season. Thanks to the leadership of Senator Risch, Senator Cantwell, Representative Newhouse, Representative Schrader and others, the 2018 Endangered Salmon Predation Prevention Act provided targeted tools, and early results show improved salmon survival.
But the MMPA still prevents meaningful action in many areas where predation is most acute.
In Puget Sound, harbor seals consume 6 to 14 percent of juvenile Chinook annually and as much as one-third of steelhead smolts in certain estuaries. Along the Washington and Oregon coasts, Steller sea lions consumed more than two million juvenile Chinook in just eight months. These losses undo gains made through habitat restoration, hatchery reform, and harvest constraints.
And outside the Columbia River, managers lack a workable path under current law to intervene.
I want to acknowledge that this is a polarizing and emotional topic. Pinnipeds are an important part of the ecosystem, and their recovery is a real success of the MMPA. We also appreciate the thoughtful, science-driven work already being done by federal, state, and tribal co-managers, often under very limited authority. Our goal is not to diminish those efforts but to ensure managers have the balanced tools needed to conserve both salmon and pinnipeds.
To support recovery, ASA urges Congress to consider several targeted, science-based updates to the MMPA:
* First, create a streamlined pathway for managing predatory pinnipeds in Puget Sound and along the Washington and Oregon coasts by expanding the location-based approach in Section 120(f).
* Second, extend management authority to predation hot spots including Puget Sound, both coasts, and Columbia River tributaries such as the Cowlitz and Lewis rivers.
* Third, provide dedicated federal funding to support monitoring, removals, and ongoing scientific analysis.
* Fourth, extend MMPA management authority to Washington's treaty tribes and work collaboratively with Oregon's tribal governments.
* Finally, pinniped management must complement - not replace - investments in habitat, hatcheries, hydropower mitigation, and harvest reforms. But we must be honest: continuing to spend billions on recovery and continually restricting fisheries, without meaningfully addressing predation, will produce a predictable outcome - and it will not be recovery.
The sportfishing community cares deeply about conservation. We want future generations to fish for salmon across the Northwest. To achieve that, we must address all limiting factors, including marine mammal predation.
Thank you for your time and for your continued leadership. I look forward to your questions.
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Original text here: https://docs.house.gov/meetings/II/II13/20251203/118718/HHRG-119-II13-Wstate-PhillipsL-20251203.pdf