The recently enacted Consolidated Appropriations Act of 2021 (“CAA”) requires new disclosures for brokers and other consultants providing services to certain group health plans.  Under the CAA, “covered service providers” must disclose their “direct” and “indirect” compensation above $1,000 received during the term of the contract or arrangement to a responsible plan fiduciary of a “covered health plan.”

Previously, the DOL issued regulations pursuant to ERISA Section 408(b)(2) only requiring qualified retirement plans to disclose this information, specifically exempting group health and welfare plans.  The CAA amends ERISA Section 408(b)(2) to broaden the definition of “covered plan” to include “covered health plans”, and it requires the disclosure of direct and indirect compensation paid by “covered service providers” to such plans.

A “covered health plan” includes employee benefit welfare plans to the extent the plan provides medical care to employees or their dependents directly or through insurance, reimbursement, or other methods.  A “covered health plan” does not include a qualified small employer health reimbursement arrangement.

A “covered service provider” is defined to include entities that provide brokerage or consulting services for which the provider enters into a contract or arrangement with the covered plan and reasonably expects $1,000 or more in direct or indirect compensation.  The brokerage and consulting services include the selection of insurance products, recordkeeping services, medical management vendors, benefits administration (including vision and dental), stop-loss insurance, pharmacy benefit management services, wellness design and management services, transparency tools, group purchasing organization agreements, participation in and services from preferred vendor panels, disease management, compliance services, employee assistance programs, or third party administration services.

“Direct compensation” includes all compensation paid directly from the plan.  “Indirect compensation” is defined as compensation from any source other than the covered plan, the plan sponsor, the covered service provider, or an affiliate.  It also includes compensation from a subcontractor unless it is received in connection with services performed under a contract or arrangement with a subcontractor.

The new law details specific items that must be disclosed by the service provider to the plan fiduciary, including a description of the services provided and a description of all covered direct and indirect compensation.  The disclosure requirements will be effective December 27, 2021.

Group health plans should begin working in coordination with covered service providers to determine whether these new disclosure requirements will apply to them and, if so, what indirect compensation must be disclosed.  In preparing to comply with these new disclosure rules, affected parties may seek guidance in the disclosures practices that developed under Section 408(b)(2) in connection with qualified retirement plans.

Photo of Neal Schelberg Neal Schelberg

Neal serves as legal counsel to numerous pension and welfare benefit plans subject to ERISA. His clients span a wide variety of industries, including professional sports, teamsters, building and construction, health care, industrial, wholesale and retail food and newspaper publishing. He has particular…

Neal serves as legal counsel to numerous pension and welfare benefit plans subject to ERISA. His clients span a wide variety of industries, including professional sports, teamsters, building and construction, health care, industrial, wholesale and retail food and newspaper publishing. He has particular experience representing insolvent and financially distressed multiemployer pension plans.

He practices the full spectrum of employee benefits law. From advising on compliance issues, to negotiating benefit provisions in mergers and other business reorganizations and advising benefit plan clients and sponsors on investment transactions in traditional and alternative asset classes, Neal deftly hones in on the critical issues in order to protect the plan fiduciaries and meet their business needs.

Neal has been widely recognized as a leading employee benefits practitioner in Proskauer’s Employee Benefits & Executive Compensation Group which is rated “Tier 1” by The Legal 500 United States, a leading legal directory which rates firms and lawyers based on client feedback. Clients cite Neal as ‘one of a kind’ – he is the only practitioner in the field I would select to brief a CEO or corporate board.”

He is a former Chair of the ERISA Advisory Council, having been appointed to this position by the U.S. Secretary of Labor in 2014

Neal is a frequent lecturer and prolific author for many organizations such as the International Foundation of Employee Benefit Plans, the Law Education Institute and the Practising Law Institute. He has also been quoted in numerous journals and periodicals.

He serves as a board member for the National Association of Drug Abuse Programs and the D.C. 9 Scholarship Fund.

Photo of Anthony Cacace Anthony Cacace

Anthony S. Cacace is a partner in Proskauer’s Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group. Anthony serves as legal counsel to the boards of trustees and other fiduciaries of Taft-Hartley multiemployer pension and welfare…

Anthony S. Cacace is a partner in Proskauer’s Labor & Employment Law Department and a member of the Employee Benefits & Executive Compensation Group. Anthony serves as legal counsel to the boards of trustees and other fiduciaries of Taft-Hartley multiemployer pension and welfare benefit plans subject to ERISA in a variety of industries. These include construction, transportation, private sanitation, trucking, industrial, health care and maritime.

Anthony’s representation of trustees and other fiduciaries ranges from counseling on the day-to-day operations of multiemployer funds, including:

  • drafting plan documents, amendments and procedures;
  • negotiating and drafting fund service provider agreements;
  • counseling with respect to participant claims; and
  • providing legal advice with respect to requirements of ERISA and the IRC.

His practice also includes more complex and high stakes scenarios, such as:

  • advising on fund mergers;
  • advising on fund acquisitions of real property;
  • drafting and submitting corrective applications to the IRS; and
  • counseling fiduciaries in investigations and audits by governmental agencies (including the U.S. DOL, U.S. DOJ and the IRS).

Anthony’s practice is unique because of his specialization in ERISA litigation. He advises trustees and fiduciaries from a litigation avoidance perspective, solving problems and rendering advice in risk exposure situations before they evolve into disputes or litigations. A skilled litigator, he often defends trustees and fiduciaries in lawsuits brought pursuant to ERISA, alleging claims for breaches of fiduciary duty, benefit claim denials, plan investment losses and improper plan amendments. In addition, he regularly represents his fund clients as plaintiffs in court, seeking to collect withdrawal liability and delinquent contributions from contributing employers.

Anthony is an accomplished author and speaker on issues confronting trustees of multiemployer funds. He has authored several articles featured in Bloomberg Law Reports and Benefits Magazine, and also serves as a chapter editor of the withdrawal liability section of the American Bar Association’s Employee Benefits Law treatise published by BNA. Anthony is routinely invited to speak at International Foundation of Employee Benefit Plans conferences and the ABA Employee Benefits Committee mid-winter meetings.

Photo of Mary Grace Richardson Mary Grace Richardson

Mary Grace Richardson is an associate in the Labor & Employment Department and a member of the Employee Benefits & Executive Compensation Group.

In the employee benefits area, Mary Grace’s practice focuses on an array of tax and benefits issues impacting both multiemployer…

Mary Grace Richardson is an associate in the Labor & Employment Department and a member of the Employee Benefits & Executive Compensation Group.

In the employee benefits area, Mary Grace’s practice focuses on an array of tax and benefits issues impacting both multiemployer and single-employer benefit plans and plan fiduciaries. She assists clients on matters pertaining to plan administration, design and qualification, as well as regulatory, legislative and legal compliance.

Prior to joining Proskauer, Mary Grace clerked for Chief Judge S. Maurice Hicks, Jr. in the United States District Court for the Western District of Louisiana.

Mary Grace received her J.D. and diploma in comparative law, magna cum laude, from Louisiana State University Paul M. Hebert Law School. At LSU, she served as a senior editor of the Louisiana Law Review and was a member of the Order of the Coif.