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Employer Resource

Your Right to Know What Your Broker Earns

Consolidated Appropriations Act of 2021 — Section 202 Broker Compensation Disclosure
What the Law Requires

Section 202 of the CAA (amending ERISA §408(b)(2)) requires any broker, consultant, or service provider to a group health plan to proactively disclose all direct and indirect compensation they receive in connection with your plan — before the contract begins and annually thereafter.

This applies to all ERISA-covered group health plans (virtually every private employer plan), regardless of size. The disclosure must be made to the plan fiduciary — typically the employer or HR leadership.

Must Be Disclosed

  • Broker commissions (flat fee & PEPM/PMPM)
  • Consulting and advisory fees
  • Bonuses, incentives, and overrides from carriers
  • Revenue sharing, referral fees, or finder's fees
  • Indirect compensation from any third party (PBMs, TPAs, stop-loss carriers, wellness vendors, etc.)
  • Compensation paid to subcontractors related to your plan

How It Must Be Disclosed

  • In writing — verbal disclosure is not sufficient
  • Before the contract is entered or renewed
  • Reasonable in advance so fiduciary can evaluate
  • Must describe services provided for each compensation stream
  • Must identify the payer of each compensation
  • Updated if compensation materially changes
Why This Matters

Many brokers earn significantly more from carrier commissions, bonuses, and downstream vendor kickbacks than from the fees they quote you directly. Without disclosure, you can't evaluate whether your broker's recommendations serve your plan's interests or their own. A broker recommending a specific carrier, PBM, or TPA may be financially incentivized by that vendor — and you have a legal right to know.

Key point: If your broker has not provided a written compensation disclosure, they are likely out of compliance with federal law. You should request one immediately.
What to Do
1. Request the disclosure in writing. Send a formal letter or email to your broker/consultant asking for their CAA Section 202 compensation disclosure for the current plan year. 2. Review all compensation streams. Look beyond the advisory fee. Ask specifically about carrier bonuses, override commissions, downstream vendor compensation, and any per-member fees from third parties. 3. Compare to services rendered. As a plan fiduciary, you must confirm that compensation is reasonable for the services provided. Excessive or misaligned compensation may indicate a conflict of interest. 4. Document your review. ERISA fiduciary duty means you should document that you received, reviewed, and evaluated the disclosure. Keep it on file with your plan documents.
Fiduciary obligation: Under ERISA §406 and §408(b)(2), plan fiduciaries who fail to obtain and review broker compensation disclosures may face personal liability for prohibited transactions. The CAA extended these rules from retirement plans to health plans effective December 27, 2021.