You are a fiduciary of your health plan. Nobody told you.

If your company sponsors a group health plan, ERISA makes the people who make decisions about it fiduciaries, held to duties of loyalty, prudence and following the plan documents. Most benefits brokers decline that duty in their contracts. Ethos accepts fiduciary responsibility for its health plan advice in writing, and its consultants work to a fiduciary standard of care.

Your 401(k) has a committee, minutes, benchmarking and an advisor who signs a fiduciary acknowledgment. Your health plan is the larger and less predictable spend, and it has a renewal meeting. ERISA does not distinguish between the two.

Who is a fiduciary of a health plan?

ERISA decides who is a fiduciary by what they do, not by their title. Under ERISA § 3(21)(A), anyone who has discretionary authority or control over how a plan is managed or administered is a fiduciary of it, to the extent of that authority.

For an employer health plan, that almost always includes:

  • The company, as plan sponsor and usually as plan administrator.
  • The people who make plan decisions on the company’s behalf: often the CFO, the head of HR, and anyone on a benefits committee.
  • Any outside party that accepts fiduciary responsibility for its role in writing.

The duty applies whether or not anyone has told you about it, and whether the plan is fully insured or self-funded.

What a fiduciary owes the plan.

ERISA § 404(a)(1) sets out the standard of care. For a health plan, three duties do most of the work.

DutyWhat ERISA requiresWhat it looks like for a health plan
LoyaltyERISA § 404(a)(1)(A)Act solely in the interest of participants and beneficiaries, for the exclusive purpose of providing benefits and paying reasonable expensesNobody advising the plan has an interest in it costing more
PrudenceERISA § 404(a)(1)(B)Act with the care, skill and diligence a knowledgeable person would use in the same situationAlternatives documented, vendors benchmarked, claims read directly, minutes kept
Follow the plan documentsERISA § 404(a)(1)(D)Run the plan according to the documents that govern it, as long as they comply with ERISAThe plan document, the SPD and the vendor contracts agree, and the plan does what they say

ERISA also requires diversifying plan assets (§ 404(a)(1)(C)). That duty matters where a plan holds investments, which most health plans do not.

Prudence is judged on process, not outcome. A renewal that went badly can still be prudent if the committee looked at the alternatives and recorded why it chose what it did. A renewal that went well is still exposed if nobody can show how the decision was made.

Is your broker a fiduciary?

Look for the section of your broker agreement titled “Relationship of the Parties” or something like it. Many agreements say, in some form:

  • the firm is not a fiduciary to the plan,
  • the firm acts as an independent contractor and does not give legal or tax advice,
  • the employer keeps sole discretion over every plan decision, and
  • the firm’s liability is limited, sometimes to the fees paid in the past year.

None of this is hidden, and none of it is unusual. It means the firm running your renewal has agreed, in writing, that the duties above do not apply to it. The duty, and the exposure, stays with you.

Ask your advisor to strike that paragraph and sign a fiduciary acknowledgment instead. If the answer is a paragraph rather than a signature, you have your answer.

Why brokers decline the duty.

Because the standard is demanding, and because loyalty is hard to show when an advisor’s pay rises with the plan’s cost. Many benefits advisors are paid a percentage of premium, directly or through the carrier. Nobody designed that to be a conflict. It just is one.

Since the Consolidated Appropriations Act, 2021, brokers and consultants who expect $1,000 or more in compensation from your group health plan must disclose it to you in writing under ERISA § 408(b)(2). Reviewing that disclosure every year is part of a prudent process. If you have never received one, ask for it.

A fiduciary process, in practice.

The same things your retirement plan committee already does, applied to the health plan:

  1. A committee with a charter, so it is clear who decides what.
  2. Documented alternatives at every renewal, not just the incumbent’s quote.
  3. Vendor benchmarking on a schedule.
  4. Compensation disclosures reviewed for every broker, consultant and vendor.
  5. Claims and pharmacy data read directly, not from a carrier summary.
  6. Minutes for every meeting and every decision.

The Ethos Fiduciary Framework™ turns those into a three to five year business plan for your benefits, reviewed with your committee every quarter.

How Ethos works to the standard.

Our consultants work to a fiduciary standard of care: the same duties of loyalty and prudence you carry as the plan sponsor. It is written into the engagement agreement, not a marketing page.

Donovan Ryckis, Ethos’s founder and CEO, advised retirement plans as a Series 65 investment advisor before founding Ethos. The standard came with him.

Every engagement runs the Ethos Method, five phases that produce the record a fiduciary needs. That record lives in the Ethos Fiduciary OS: decisions with their minutes, vendor reviews, compliance deadlines and plan documents, in one place.

This page describes ERISA in plain language for employers. It is not legal advice.

Sources

  1. Understanding Your Fiduciary Responsibilities Under a Group Health Plan, U.S. Department of Labor, Employee Benefits Security Administration
  2. 29 U.S. Code § 1002(21), definition of fiduciary (ERISA § 3(21)), Legal Information Institute, Cornell Law School
  3. 29 U.S. Code § 1104, fiduciary duties (ERISA § 404), Legal Information Institute, Cornell Law School
  4. 29 U.S. Code § 1109, liability for breach of fiduciary duty (ERISA § 409), Legal Information Institute, Cornell Law School
  5. Field Assistance Bulletin 2021-03, disclosure requirements for brokers and consultants to group health plans, U.S. Department of Labor, Employee Benefits Security Administration

Questions employers ask about this.

Does fiduciary duty apply to a fully insured health plan?

Yes. The duties apply to the employer's plan however it is funded. With a fully insured plan, the insurer decides claims, but the employer still chooses the insurer, the broker and the plan design, and those choices have to meet the same standard of loyalty and prudence.

What are a fiduciary's duties?

Loyalty, prudence and following the plan documents, under ERISA § 404(a)(1). Loyalty means acting solely in the interest of participants. Prudence means the care and diligence a knowledgeable person would use, judged on process. A fourth duty, diversifying plan assets, applies where a plan holds investments.

Is my benefits broker a fiduciary?

Usually not, and usually by contract. Many broker agreements state that the firm is not a fiduciary and that the employer keeps sole discretion over every plan decision. Ask your broker to sign a fiduciary acknowledgment. Ethos accepts fiduciary responsibility for its health plan advice in its engagement agreement.

Can I be personally liable as a health plan fiduciary?

Yes. ERISA § 409 makes a fiduciary who breaches a duty personally liable to restore the plan's losses. That is why a documented decision process matters. Prudence is judged on how a decision was made, so the record of the process is the best protection a committee has.

What does my broker have to disclose about how they are paid?

Brokers and consultants who expect $1,000 or more in direct or indirect compensation from your group health plan must disclose it to you in writing, reasonably in advance of the contract or its renewal. The rule comes from ERISA § 408(b)(2), as amended by the Consolidated Appropriations Act, 2021.

See what your plan is really costing you.

A Strategic Analysis starts with your plan documents and your broker agreement, then shows you what your plan costs, where the risk sits, and what a committee would decide with the full picture.