Since 2021 a broker or consultant expecting a thousand dollars or more from a group health plan has to tell the plan's fiduciary, in writing and in advance, what it will be paid. Here is the text and the Department's stated position.
Information provided is for general reference only and does not constitute medical advice. Consult a qualified healthcare professional before making medical decisions.
Broker compensation disclosure has been a statutory duty for group health plans since the Consolidated Appropriations Act of 2021. A broker or consultant who reasonably expects $1,000 or more must describe its direct and indirect pay to the plan's fiduciary in writing, before the contract is signed, and we found no withdrawal of the Department of Labor's 2021 enforcement policy.
Sylk Health. Current as of October 2026.
A plan sponsor buying advice has the same problem as a plan sponsor buying care: the price is set by a party with more information about it. For retirement plans, a Department of Labor regulation effective in 2012 required service providers to disclose their compensation. The Consolidated Appropriations Act of 2021 extended a version of the same requirement to group health plans, and it binds now. What follows is the statute, quoted, and what the Department of Labor has said about enforcing it. Anything a plan or an adviser does about it is a matter for counsel.
The duty is written into the exemption a plan relies on whenever it pays anyone for services. In the statute's (opens in new tab) own words: "No contract or arrangement for services between a covered plan and a covered service provider, and no extension or renewal of such a contract or arrangement, is reasonable within the meaning of this paragraph unless the requirements of this subparagraph are met."
That construction matters more than it first appears. The exemption at section 408(b)(2) of the Employee Retirement Income Security Act (ERISA) is what allows a plan to pay a service provider without the payment being a prohibited transaction. Hanging the disclosure duty on the word "reasonable" means a failure to disclose does not create a separate penalty; it removes the ground on which the arrangement stood.
The statute defines the provider it reaches by the money it expects. A covered service provider "means a service provider that enters into a contract or arrangement with the covered plan and reasonably expects $1,000 (or such amount as the Secretary may establish in regulations to account for inflation since December 27, 2020, as appropriate) or more in compensation, direct or indirect, to be received" in connection with the listed services.
Two features of that are worth drawing out. The test is what the provider reasonably expects, not what it ultimately receives. The threshold is a fixed dollar figure the Secretary may adjust for inflation from a stated date, which means it is low and will stay low relative to the compensation most such arrangements involve. The Department's own restatement (opens in new tab) names the services plainly: the requirements "apply to persons who provide 'brokerage services' or 'consulting' to ERISA-covered group health plans who reasonably expect to receive $1,000 or more in direct or indirect compensation in connection with providing those services."
The disclosure runs one way, to a named recipient, in a stated form: "A covered service provider shall disclose to a responsible plan fiduciary, in writing ... the following". The list covers six items, including the services, fiduciary status, transaction-based and termination compensation; the two that matter most here, with the separate timing rule, are:
The indirect limb is the one that reaches the payments a plan sponsor is least likely to see, because they come from somewhere other than the plan.
The consequence falls on the arrangement, as clause (i) sets it up. A separate provision gives the plan fiduciary conditional relief, and it is worth being precise about whose relief it is. The clause disapplies two of the prohibited-transaction rules "to a responsible plan fiduciary, notwithstanding any failure by a covered service provider to disclose information required under clause (iii), if the following conditions are met". The relief protects the fiduciary who did not know of the failure, asked for the information in writing and escalated it. It does not cure the provider's omission.
The Department issued a field assistance bulletin at the end of 2021 that "announces the Department of Labor's (Department) temporary enforcement policy for group health plan service provider disclosures under ERISA section 408(b)(2)(B)", and stated in the same document that it "is not issuing regulatory guidance at this time." The policy itself is a single sentence, and its condition is the operative part: the Department "will not treat that person as having failed to make required disclosures to a responsible plan fiduciary under ERISA section 408(b)(2)(B) as long as the person made disclosures in accordance with a good faith, reasonable interpretation of ERISA section 408(b)(2)(B)."
Whether that position still stands we could not establish from a primary source. Two independent passes searched the Department's bulletin index (opens in new tab) and its compliance guidance, and found no later bulletin on this topic, no rescission notice, and the 2021 document still posted. That is evidence that nothing has superseded it. It is not the same as a current statement that it remains in force, and we do not present it as one.
The same Act added two further duties, both primary duties on the plan rather than on the adviser. The table below sets all three side by side.
Duty | Who carries it | Trigger or timing | Where it is written |
|---|---|---|---|
Compensation disclosure | Brokers and consultants | $1,000 or more expected; in writing, reasonably in advance of the contract | 29 U.S.C. § 1108(b)(2)(B), added by section 202 |
Gag-clause attestation | Plans and issuers | Annually | Section 201 |
Prescription drug data report | Plans and issuers (church plans excepted) | Within 1 year of enactment, then by 1 June each year | Section 204 |
The Act's text (opens in new tab) frames the second as an annual attestation "that such plan or issuer of such coverage is in compliance with the requirements of this subsection", meaning the prohibition on contract terms that restrict disclosure of provider cost and quality information.
It includes, among other items, "The 50 brand prescription drugs most frequently dispensed by pharmacies for claims paid by the plan or coverage, and the total number of paid claims for each such drug," according to section 2799A-10(a)(4) of the Public Health Service Act, added by section 204 of the 2021 Act. The report is due from group health plans and issuers by 1 June each year and covers the previous plan year.
Not as of this writing. Field Assistance Bulletin 2021-03 said the Department "is not issuing regulatory guidance at this time," and adopted a good-faith enforcement standard instead. The bulletin index lists later bulletins through 2026, including Field Assistance Bulletin 2026-01 on enforcement priorities, and none of them addresses 408(b)(2)(B) disclosure.
The statute says yes. Its $1,000 threshold counts compensation "direct or indirect", and the disclosure must describe "all indirect compensation" the broker, an affiliate or a subcontractor reasonably expects in connection with the services. A commission paid by an insurer is the standard example of pay that reaches the broker from somewhere other than the plan, which is why the indirect limb exists.
The same principle runs through broker compensation disclosure that runs through everything else we publish. A figure is worth more to a buyer when the party stating it has no interest in its level, and where that cannot be arranged, the next best thing is that the interest is disclosed in writing before the buyer commits.
Congress reached that conclusion about the people who advise plans. We reach it about the people who price procedures, including ourselves, which is why the line below appears on everything we publish. Our post on eight questions to ask before you use any price dataset applies the same test to price data, and our post for insurance agents asked about treatment abroad takes up what a licence allows an adviser to say.
This article is general information about a federal statute and agency guidance. It is not legal, tax or financial advice; a plan or an adviser weighing its own position should take it from counsel.
Disclosure: Sylk Health supplies procedure-price data and earns a commission from providers on bookings completed through its platform. It would benefit from broader use of externally benchmarked prices for medical procedures, and from any gap between those prices and prices in the United States.
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