The Consolidated Appropriations Act Introduces Broker Compensation Transparency

The recent passage of the Consolidated Appropriations Act (CAA) introduced new regulations concerning broker compensation transparency.

Currently, Section 408(b)(2) of ERISA requires any compensation paid to service providers be “reasonable.” While this generally applied to retirement plans, the CAA adds additional requirements to this section.

Effective December 27, 2021, brokers and consultants of ERISA covered group health plans, regardless of size, will be required to execute a written contract with a responsible plan fiduciary which includes the following information: 

• A description of the services to be provided.
• If applicable, a statement that the broker/consultant plans to offer fiduciary services to the plan.
• A description of all direct compensation the broker expects to receive (in the aggregate or by service).
• A description of all expected indirect compensation including vendor incentive payments, a description of the arrangement under which the compensation is paid, the payer of the compensation, and any services for which the compensation will be received.
• Any transaction-based compensation (commissions or finder’s fees) for services and the payers and recipients of the compensation.
• A description of any compensation the broker/consultant expects to receive in connection with the contract’s termination and how any prepaid amounts will be calculated and refunded upon termination.

Some of the already stated parts of the amendment include: 

• Service provider definition
• Definition of direct and indirect compensation
• Consequences of failure to disclose

These new rules apply only when the broker or consultant expects to receive at least $1,000 in direct or indirect compensation (whether paid to the broker, an affiliate, or subcontractor). It is preferred that the disclosure should occur well in advance of either the contract date or the renewal date. 

For the purposes of this new regulation, the definition of a broker or consultant is broad and includes parties who are not considered traditional brokers/consultants, such as pharmacy benefit managers, wellness vendors, and third-party administrators. 

Please note that plan fiduciaries must report brokers/consultants to the DOL if they do not comply with these requirements. 

IMPORTANT Regulations for this new guidance have not been written. We do not anticipate those regulations being completed before July 2021. There may be different interpretations as the regulations are being written, so it is premature to be overly concerned as to how these impending regulations will affect your business operations. 

As the process advances, the BenefitMall compliance team will be preparing tools to assist with complying with this new regulation.