In two previous posts, we reported on the rules enacted in Section 202, Division BB of the Consolidated Appropriations Act, 2021 (the "Act") requiring the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans. Our first post focused on the underlying statutory provision; the second post covered the highlights of Department of Labor Field Assistance Bulletin 2021-03. This post addresses the narrow question of the reporting of general agent commissions under the new rules and in light of Field Assistance Bulletin 2021-03. The question is of practical interest, and it also sheds light on the Department of Labor's initial approach to the interpretation of the statute.

Background

As we previously explained, Division BB of the Act broadly addresses surprise medical billing and health plan transparency. Section 202 of Division BB establishes rules governing the disclosure of direct and indirect compensation paid to brokers and consultants who advise group health plans. The Act's broker and consultant compensation rules are modeled on similar disclosure requirements that have applied to pension plan service providers since 2012. Both rules are statutory exemptions under ERISA section 408(b)(2)(B), in the absence of which the receipt of compensation by a service provider would trigger a prohibited transaction under ERISA section 406(a).

An insurance company "general agent" is an agent with underwriting authority from an...

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