Is ERISA Up for the Job? Improving Employer-Sponsored Health Insurance Affordability

Is ERISA Up For The Job?

Improving Employer-Sponsored Health Insurance Affordability

June 2026

More than half of all Americans receive health insurance through an employer, but increasing health care prices, consolidation, and administrative complexities are driving up health plan premiums for employers and employees alike. In this brief, CHIR examines if and how ERISA (Employee Retirement Income Security Act of 1974), the long-standing federal law governing employer-sponsored health plans, can improve the affordability of employer-sponsored insurance.

Keep scrolling to read the full brief. An executive summary is available here.

Table of Contents

1. Introduction
2. Employer-Sponsored Insurance: The Rickety Backbone of the U.S. Health Care System
3. The Billion Dollar Question: Can ERISA Help Make Employer-Sponsored Insurance Affordable?
4. Exploring Three Realms of ERISA: Transparency, Litigation, and Oversight
   1. How Can ERISA Make the Health Care System More Transparent for Employers?
   2. How Can ERISA Litigation Drive Better Health Plan Stewardship?
   3. How Can the Department of Labor Promote Affordability Under ERISA?
5. A Cost Containment Reform Agenda for ERISA
6. Sources

Introduction

Employer-sponsored health insurance is the primary source of health coverage for most non-elderly Americans, who—alongside their employers—have shouldered decades of health care spending growth. The Employee Retirement Income Security Act of 1974 (ERISA), which governs most private employer health plans, primarily focuses on protecting the rights of workers enrolled in retirement and health plans. In this brief, we explore how ERISA is increasingly playing a role in efforts to reduce health care spending and ultimately increase affordability for employers and workers alike, and opportunities to expand ERISA’s influence and impact in this regard.

ERISA seems well-suited to controlling health plan spending on its face—the law demands those in charge of administering an employer health plan be good stewards of the plan’s assets and provides enforcement mechanisms to back up these requirements. But the law’s application to health plan spending is complicated. We look at ERISA across three realms to disentangle these complications and identify opportunities for reform. We first examine how ERISA’s transparency requirements can help employers be better purchasers of health care. We then consider whether and to what extent ERISA’s fiduciary requirements, enforced through private lawsuits, can drive better health plan stewardship in the wake of greater transparency, as happened a decade ago in the 401(k) industry. Finally, we probe whether and how the U.S. Department of Labor (DOL) can leverage its authority under ERISA to further advance health care cost containment and affordability.

We find legislative and regulatory reforms could further expand the role ERISA can play and the impact it can have in reducing health plan spending. In particular, we identify three actions we believe could move the needle to advance affordability:

1. Policymakers could clarify when ERISA’s fiduciary duties apply to pharmacy benefit managers (PBMs) and third-party administrators (TPAs), and identify examples of compensation schemes or other contracting and business practices that may violate these duties.
2. Congress could amend ERISA to directly regulate more PBM, TPA, and other service provider conduct, both to enhance oversight over its transparency requirements and to prohibit or limit anticompetitive contracting behavior and other abusive business practices.
3. Congress could provide the DOL with resources and authority to more actively support employers in their role as health care purchasers.

Employer-Sponsored Insurance: The Rickety Backbone of the U.S. Health Care System

• Employer-sponsored health insurance is increasingly unaffordable for employers and plan members.
• Affordability problems derive from a broken commercial health care market, plagued by consolidation and a complex web of profit-extracting intermediaries.
• These intermediaries include large, insurer-affiliated PBMs and TPAs that engage in anti-competitive and financially exploitative practices that exacerbate affordability problems.

More than half of the country’s non-elderly population—approaching 157 million Americans—were enrolled in employer-sponsored insurance in 2024, and this share has held steady for decades.ⁱ Generally, if someone is eligible to receive employer coverage directly or through a family member, they choose to do so.ⁱⁱ Yet health care spending has largely outpaced both economic and wage growth for decades.ⁱⁱⁱ The average family premium for employer coverage was nearly $27,000 in 2025, an increase of more than 150% over a ten-year period.^iv Employers bear the bulk of these costs and respond to health care cost increases by raising prices for customers, reducing profit margins, cutting benefits, and decreasing or keeping stagnant wages for workers.^v Workers also make significant contributions to their own health plan costs, yet still often face increasingly high and sometimes unaffordable cost-sharing obligations when they use care.^vi

Table 1.

Average Costs of Employer-Sponsored Family Coverage, 2015 vs. 2025

	2015	2025	Change
Total Premiums	$17,680	$26,993	153%
Employer Contributions	$12,678	$20,143	159%
Worker Contributions	$4,993	$6,850	137%
Aggregate Deductibles (PPO plans)	$2,012	$3,118	155%

Sources: KFF Employers Health Benefits Survey, 2015 and 2025

The primary causes of rising spending are market failures such as consolidation, inefficient care delivery, and revenue-maximizing billing practices, rather than improved quality.^vii The U.S. health care system is highly concentrated. A small number of dominant health systems and insurance carriers—many of which are affiliated with PBMs, TPAs, and health care providers—profit from ever-higher spending.^viii For example, research suggests that both PBMs and TPAs steer participants to their affiliated pharmacies and clinicians, whom they often pay considerably more than non-affiliated network providers.^ix A tangled web of intermediaries also has spun off around the major industry players, aiming to extract revenue from the health care system while adding administrative complexity and burden.^x

Employers are caught in the midst of this complex web as they attempt to provide affordable, comprehensive health insurance for employees. Particularly for small and mid-size employers, this responsibility falls on a small team, if not a single individual in the employer’s human resources department, who must rely on external brokers and consultants (who frequently have their own financial stake in the outcome) to navigate the system.^xi Most large employers opt to self-fund at least one plan, meaning that they are directly responsible for paying the cost of the health claims members of their health plan incur, rather than transferring this financial risk to a commercial insurance company underwriting a fully insured health plan.^xii Nonetheless, self-funded plans are just as tangled up, if not more, in the U.S. corporate health care system web as fully insured plans, as they typically rely on self-interested intermediaries—including PBMs and TPAs, and affiliates and subcontractors of these entities—to handle plan operations.^xiii

Plans contract with PBMs and TPAs for access to their negotiated prices and networks and for claims administration, among other services. PBMs have faced ample public criticism for financially exploitative conduct.^xiv Recent evidence, including lawsuits, press stories, and research, suggests that TPAs also are prioritizing their own financial interests over those of their health plan clients.^xv For example, TPAs allegedly have charged self-funded plans more than the negotiated rate and either keep the spread or use self-funded plan assets to satisfy promises to pay network providers a minimum amount of revenue per year.^xvi Lawsuits also allege that TPAs collected undisclosed fees and amassed substantial compensation through network and non-network claims adjudication and overpayment recovery. These fees were sometimes disguised as part of the total benefit payment, making it impossible for employers to determine whether the fees were reasonable.^xvii

Given the current, consolidated state of the health care market, evidence shows that even large employers often lack the market power to negotiate good deals for their employees.^xviii Other evidence suggests many employers may not even bother to try.^xix

The Billion Dollar Question: Can ERISA Help Make Employer-Sponsored Insurance Affordable?

• ERISA is the primary law governing most private employer-sponsored health insurance plans.
• ERISA requires that health plan fiduciaries spend plan assets wisely, and bars health plans from paying more than reasonable compensation to service providers, including PBMs and TPAs.
• ERISA has long imposed these requirements, but the law is drawing new scrutiny as employers gain access to more information about what they are actually paying—and to whom—and affordability concerns grow.

ERISA is a decades-old law that is primarily focused on ensuring that workers eligible for or enrolled in an employer health or retirement plan receive the benefits their plan terms promise.^xx Notably, ERISA does not require that employers offer any type of employee benefits—including a retirement or health plan—to their workers.^xxi When an employer chooses to sponsor a health plan, however, ERISA’s requirements apply. Congress primarily designed ERISA to protect participants of pension and other retirement plans when it first enacted the law,^xxii yet it also governs most private employer health plans (see Box 1).^xxiii Over time, Congress has expanded ERISA to impose certain substantive requirements on employer health plans, such as requirement to offer continuation of health coverage,^xxiv to offer “special enrollment periods” prohibit health status discrimination,^xxv and to cover, when offered, mental health benefits no more restrictively than medical benefits.^xxvi

Even though Congress did not draft ERISA with health plans, much less health care cost containment, in its focus, ERISA’s core provisions are seemingly well-suited to keeping health plan spending in check—a potential that has only recently drawn serious attention. ERISA provides that anyone who has or exercises discretion over plan management and administration or who has control over plan assets is a plan “fiduciary” (see Box 1). Plan fiduciaries must perform these functions with prudence and loyalty, acting solely in the interest of plan participants.^xxvii Encompassed within these broad duties are requirements that plan fiduciaries not engage in self-dealing, act on behalf of adverse parties, or receive third-party consideration in connection with plan assets.^xxviii Furthermore, plan fiduciaries must spend plan dollars wisely, ^xxix and actively monitor the plan and the performance of service providers to ensure plan assets are not wasted or misused.^xxx Implicit in these duties is an expectation that plan fiduciaries have access to relevant information and data on plan spending, as well as data reflecting the costs and quality of the health care and administrative services the plan purchases.^xxxi On top of these obligations, ERISA bars plan fiduciaries from entering into “prohibited transactions,” such as paying more than reasonable compensation to anyone providing services to the plan, including PBMs, TPAs, and various other vendors.^xxxii Non-fiduciaries who knowingly participate in a “prohibited transaction” can also face liability.^xxxiii Violations of these requirements carry the risk of lawsuits and administrative civil penalties from the DOL, plan members, and other plan fiduciaries.^xxxiv

Congress has added transparency and disclosure requirements to ERISA in recent years, giving employers more information about where their health plan dollars go and where their service providers’ financial interests lie.^xxxv Federal agencies have also promulgated rules requiring hospitals and insurers alike to disclose the prices of medical items and services on publicly accessible websites,^xxxvi and the DOL recently proposed regulations requiring PBMs and other entities providing “pharmacy benefit management services” to disclose to self-funded group health plans various data points and information about the direct and indirect compensation they receive in relation to their services.^xxxvii

In light of these changes, experts and stakeholders have questioned whether health care could follow a similar path as another ERISA-regulated industry: retirement plans.^xxxviii After new retirement plan compensation disclosure regulations took effect in the early 2010s, participants in 401(k) plans brought a wave of lawsuits alleging that the fees the retirement plan’s services providers charged and received were excessive. Observers credited the required disclosures and the ensuing litigation with helping drive down retirement plan fees.^xxxix Could ERISA similarly be a “cure” for overspending in health care?

Exploring Three Realms of ERISA: Transparency, Litigation, and Oversight

Transparency, litigation, and oversight are three realms of ERISA that overlap and build upon each other. Transparency sets the foundation for action, by giving employers and other health plan purchasers necessary (if not always sufficient) information to understand where their health plan dollars are going and the incentives and structures that affect health plan spending. This information can also feed into private litigation, which, to date, has served as the primary forum for resolving questions of what ERISA’s requirements actually demand with respect to health plan stewardship. Analysis of relevant court opinions reveal both shortcomings in relying on private parties and the court system to interpret and apply ERISA, and limitations in the law itself as a mechanism to drive greater affordability. These limitations, in turn, demand inquiry into whether and how the DOL could leverage its broad authority to implement, interpret, and enforce ERISA to support better health plan stewardship.

Below, we explore these three realms. Throughout, we identify opportunities for Congress and the DOL to address the law’s limitations via new legislation, rulemaking, and guidance.

Transparency: How Can ERISA Make the Health Care System More Transparent for Employers?

• Recent changes to and regulations under ERISA are expanding employers’ access to data on health care prices, claims, and service provider compensation—giving employers more tools to evaluate what they are paying and why.
• Significant barriers nonetheless remain under the current rules, both with respect to compliance and data usability.
• Congress and the DOL could place more direct disclosure obligations on service providers, and help create and fund new resources to help employers analyze and act on newly available information.

For decades, employers have been unable to see what their TPAs were actually charging, what rates had been negotiated with providers, or what indirect compensation their service providers were collecting. Until recent transparency rules went into effect, TPAs told employers that they were getting a network-negotiated discounted rate, but claimed the actual negotiated rate was proprietary and non-disclosable.^xl Still today, TPAs do not disclose the extent to which other factors may affect provider payment amounts. Employers’ TPA contracts establish a per-member (or per-employee) per-month administrative fee, but employers are often unaware of the extent, circumstances, or, in some cases, the existence of other variable fees their service providers collect, and how these fees can misalign incentives and reward inefficient administration of plan benefits.^xli And only in recent years have employers learned that many of their health plan service providers also receive indirect compensation related to their health plan, meaning plan service providers receive payments from other third parties that can influence them to act in ways that are not in the employer or health plan’s best interest.^xlii

However, progress has been made within and beyond ERISA’s framework to promote health care transparency in recent years (see Box 2). Health care price transparency rules for hospitals, insurers, and health plans have given the public, including employers, access to the prices hospitals and payers have negotiated across services and contracts. Here, we focus on two measures the Consolidated Appropriations Act of 2021 (CAA ’21) added to ERISA to make more plan-specific information directly available to employers as health care purchasers: a requirement that health plan fiduciaries receive disclosures from their service providers regarding both direct and indirect compensation of $1,000 or more,^xliii and the prohibition barring health plans from directly or indirectly entering into contracts containing “gag clauses.”^xliv

Disclosure of all direct and indirect compensation can enable health plan fiduciaries to evaluate the reasonableness of their service providers’ compensation and alert them to any potential conflicts of interest. Congress’ initial attempt to establish compensation disclosure rules for health plan service providers had several shortcomings, however, including ambiguity regarding its scope. Many industry stakeholders interpreted CAA ’21’s language as applying only to brokers providing “brokerage services” and consultants providing “consulting services,” and therefore, not applicable to PBMs or TPAs.^xlv Members of Congress disagreed with this narrow reading, and urged DOL to issue guidance clarifying that the law reached PBMs and TPAs.^xlvi When DOL failed to act on this request, Congress clarified its intent through the Consolidated Appropriations Act of 2026 (CAA ’26), explicitly extending the disclosure requirements to PBMs and TPAs, among other service providers.^xlvii The statutory disclosure requirements, as originally written and still today, also allow significant flexibility for covered service providers to disclose compensation levels through vague and confusing formulas and ranges instead of dollar amounts.^xlviii The DOL has proposed extensive disclosure rules for entities providing PBM services that would address these concerns if finalized, and requested comment on whether similar requirements should apply to TPAs.^xlix

By banning so-called “gag clauses” from health plan contracts in CAA ‘21, Congress sought to give employers access to their health plan cost and quality information, including de-identified claims and encounter data. Congress intended that service providers could no longer claim that this information was proprietary and confidential to keep it away from employers, as they had been doing for years. Employers could, in theory, use cost and quality information not just for service provider oversight and payment integrity, but also to shape their benefit designs and plan networks, or to directly contract with health care providers.^l But while commentators often refer to the “gag clause” prohibition as giving employers a right to their health plan information and data, this overstates what the law currently provides. Responsibility for compliance falls on the plan fiduciaries entering into contracts with service providers, rather than on the service providers themselves.^li Plan fiduciaries have little recourse if service providers refuse to remove the contractual restrictions or disagree as to what contract terms constitute a gag clause.^lii Reports indicate that some TPAs continue to refuse to provide certain data, or only grant access under restrictive disclosure requirements and after lengthy delays and significant legal costs to plans.^liii Members of Congress have introduced bills that aim to fix some of the gag clause ban’s deficiencies, but none have been enacted to date.^liv

Congress and the DOL can continue to fine-tune these two requirements to clarify what PBMs and TPAs must disclose and under what terms, but policymakers should also consider addressing two more fundamental issues that currently undermine the impact of these requirements. The first issue is accountability. As written, neither the compensation disclosure requirements nor the gag clause prohibition directly regulates PBMs and TPAs, but, instead, these provisions put the primary—or even sole—burden and threat of liability on health plan fiduciaries. It is unclear whether and to what extent the DOL or private parties will be willing or effectively able to compel service providers to follow these requirements as they exist today.

The second issue is employers’ capacity to effectively use the data the law provides. Many employers so far lack the information, resources, or expertise to evaluate the data and disclosures becoming available to them. Employers also may face challenges evaluating whether they are getting a “good” deal, overall, for health care services or paying only “reasonable” administrative fees. The current health care market does not easily facilitate apples-to-apples comparisons: one TPA may agree to higher prices than another, but then engage in stricter scrutiny of claims and end up processing a similar or lesser amount of payments in the aggregate across services. Each hospital within a TPA’s network may have relatively high prices for certain services and lower prices for others, and the hospital’s quality performance on different service lines may bear no relationship to its reimbursement rates. Additionally, without access to provider contracts and internal TPA practices, an employer cannot know the extent, circumstances, and reasonableness of variable, claim-specific compensation (for example, shared savings fees on non-network claims), much less meaningfully compare their expected costs under their current TPA to alternative TPAs that use different policies and practices.

Employers also may become discouraged if they invest significant resources in data analysis only to find that they lack effective options to lower their health care spending due to hospital or service provider consolidation or employee resistance to benefit and network changes. Employers that do nothing may face some legal risk by not reviewing and acting on any newly available information, although how much is unclear. Policymakers must ensure that increased transparency is not merely an expensive and precarious bridge to nowhere.

Litigation: How Can ERISA Litigation Drive Better Health Plan Stewardship?

• ERISA authorizes plan members and plan sponsors, as fiduciaries, to bring a variety of claims for violations of ERISA, including its fiduciary obligations. Employers can be both plaintiffs and defendants in these lawsuits.
• Plan members in particular face numerous barriers to bringing suit. Courts generally have not recognized higher premiums, higher cost-sharing levels, or lost wages as actionable injuries, despite these outcomes being some of the primary effects of excess plan spending.
• Courts have also narrowly construed key elements of ERISA’s fiduciary framework to shield many employer and service provider activities from liability, including negotiating health care prices.
• In contrast, unreasonable service provider compensation—particularly hidden or variable administrative fees—appears more amenable to legal attack under ERISA.

Since its enactment, ERISA has required good stewardship of health plans and authorized plan members and fiduciaries to bring suit over alleged failures to meet this standard.^lv Greater transparency into health care prices and service provider compensation, and growing concerns about the affordability of employer-sponsored insurance, have spurred several recent lawsuits over health plan spending.^lvi Some plan members have sued employers as fiduciaries of their health plan. Other lawsuits have involved plan members and/or plan sponsors filing suit against plan service providers. Employers may find themselves in a legal conundrum: ERISA demands that they actively monitor their plans and service providers. If employers, as plan fiduciaries, examine newly available plan data and disclosures and find that their PBM or TPA has been poorly administering their plan or charging excessive fees, ERISA says they must reform their contracts and recover any losses to minimize their own risk of a lawsuit from their plan members. In some cases, this may require that employers sue their service provider. If an employer does decide that it has to sue its PBM or TPA, however, they may face a countersuit from their PBM or TPA alleging that they are at least partially responsible for allowing the mismanagement to occur.^lvii Yet, while some lawsuits against employers or service providers may succeed (which underscores that the threat of legal challenges should not be ignored), it is unlikely that private litigation alone can directly advance meaningful cost containment across the health care system.

One major impediment to litigation as a cost-containment solution is that courts regularly have dismissed for lack of “standing” ERISA claims from health plan members that centered on unreasonable plan spending. Under the U.S. Constitution, if a plaintiff’s injury is not fairly traceable to the challenged conduct or if their injury cannot be redressed by a favorable court decision, they lack standing and their claims must be dismissed.^lviii Plan members, of course, ultimately bear the brunt of excessive health care spending through rising premium contributions, higher cost-sharing, and reduced wages. But, because ERISA gives plan sponsors discretion over the share of spending employees bear—and the exercise of this discretion is not a fiduciary decision but instead part of a plan sponsor’s “settlor” authority (see Box 3)^lix—courts often have found that plan members do not have standing to challenge these types of costs.^lx Exceptions to this outcome typically have been cases where plan members alleged that they have paid higher out-of-pocket costs for specific services.^lxi

Courts have also frequently held that actions or decisions by PBMs, TPAs, and even employer-plan sponsors are not subject to ERISA’s fiduciary duties, thereby eliminating one of the primary pathways for legal action under ERISA. These rulings (in lawsuits brought by plan members and employers alike) can particularly undermine cases focused on some of the root causes of excess health care spending. For example, courts typically have found that negotiations over drug prices and provider reimbursement rates are not fiduciary functions, but instead business decisions over which PBMs and TPAs have full discretion.^lxii Courts also have ruled that PBM and TPA decisions about how to structure their businesses and what plan designs to offer are also business decisions and thus not fiduciary actions.^lxiii Similarly, a district court recently found that an employer’s choice of a traditional PBM model (that retained rebates and collected other forms of compensation tied to health care utilization and spending) over a pass-through PBM model (that does not have these features) was not a fiduciary function.^lxiv PBMs and TPAs also often argue that other activities they conduct to administer a health plan, such as pricing claims, are ministerial and not fiduciary acts, because they are merely executing plan terms and procedures without any discretion. Whether courts agree with this argument has tended to turn on the specific facts of a case.^lxv

Direct service provider compensation is one area that is more vulnerable to legal challenge and could generate some cost-savings potential. In particular, fiduciary breach claims against TPAs for excessive administrative fees have had some success over the years (at least in preliminary stages of litigation). Generally, these cases involved fees that TPAs did not disclose^lxvi or variable fee structures through which TPAs could unilaterally increase their own compensation from plans.^lxvii In contrast, courts have tended to find that PBMs are not fiduciaries for structuring their business model to profit from third-party sources, such as through the collection of rebates from drug manufacturers.^lxviii There nonetheless have been some exceptions among these PBM rulings.^lxix

Additionally, even if they cannot necessarily prevail on claims that employers or service providers breached their fiduciary duties of loyalty or prudence, plan members may still bring prohibited transaction lawsuits over arrangements that provide unreasonable compensation to PBMs and TPAs. Plan members would still need to demonstrate standing, however. How courts will evaluate and rule on the merits of such claims also is an open question.^lxx

Oversight: How Can the Department of Labor Promote Affordability Under ERISA?

• The DOL has broad authority under ERISA to encourage or require better health plan stewardship. Beyond proposing new PBM compensation disclosure rules, to date the DOL has done relatively little with this power to promote affordability.
• Opportunities for more action range from collecting and analyzing more information on health plan service providers, their practices, and compensation; to clarifying how ERISA’s fiduciary framework applies to the modern health care system through regulations and guidance; and prioritizing enforcement actions targeting PBM and TPA practices that are conflicted and contribute to higher spending.
• Current DOL leadership has affirmed their commitment to rein in health care costs, but the Department will need substantially more resources and must be prepared to attack the issue from multiple fronts to achieve this goal.

The DOL has primary jurisdiction over many components of ERISA, including reporting and disclosure, fiduciary responsibility, and enforcement.^lxxi This includes broad authority to encourage or require better health plan stewardship. Opportunities range from collecting and analyzing more information on health plan stewardship and spending, issuing new rules and guidance on or related to ERISA’s fiduciary duties for health plans, and engaging in more enforcement activities and friend of the court (amicus) briefing to crack down on violations. Until recently, the DOL has done relatively little to flex these powers to advance health care cost containment, but there are some indications that the Department intends to take a more aggressive approach on this front.

The DOL could, for example, collect more standardized information about the identity of and relationships among plan service providers and plan expenditures on the Form 5500, an annual health plan reporting requirement.^lxxii The DOL could then analyze this data—comparing, for example, different types of expenditures by plan and service provider characteristics—and publicly release its findings to inform both purchasing and policymaking. Whether based on this information or other sources, the agency also could identify examples of conflicted business practices that are or have the potential to violate ERISA, such as fee arrangements that allow a service provider to manipulate provider reimbursement or overpayment recovery levels to maximize their own compensation.^lxxiii

The DOL also could update or issue new guidance to clarify when PBMs and TPAs are acting as fiduciaries.^lxxiv To date, resolution of these issues has largely fallen on the courts and courts often rule in favor of PBMs and TPAs. In doing so, the courts frequently rely on decades-old DOL guidance that has not kept pace with the ever-growing complexity of the health care system. For example, the DOL issued its guidance on what constitutes “ministerial” functions in 1975, intending to protect back-office employees who were making simple retirement plan benefit calculations.^lxxv Yet the guidance is used today to protect PBMs and TPAs overseeing a complex, hidden web of payment methodologies and processes. The DOL could make a significant impact on litigation and even broader market conduct if it were to examine and clarify how ERISA’s fiduciary framework applies to PBMs and TPAs, who currently exercise substantial discretion in determining benefit payments and their own compensation based on their own proprietary contracts and procedures. The DOL also could complement these efforts by prioritizing enforcement actions and amicus briefings in cases challenging PBM and TPA practices that are conflicted and contribute to higher health care spending.

Public statements from the White House and political leadership at the DOL suggest that the Administration is committed to leveraging the Department’s powers to transform the employer-sponsored insurance system and to “put[] control back in the hands of employers and employees, drive[] down costs, and maximize[] value.”^lxxvi The DOL took a major step forward on this path in January 2026 when it proposed the aforementioned PBM compensation disclosure regulations, and signaled that the Department intends to enforce the rules through civil enforcement and penalties.^lxxvii Rather than put more resources towards its employee benefit agency, however, the current Administration has significantly cut the Employee Benefit Security Administration’s staffing since 2024 and has proposed additional cuts for the next fiscal year.^lxxviii The Department currently has only one investigator for every 21,200 benefit plans nationwide (more than two-thirds of which are health plans).^lxxix Programmatically, the DOL removed service provider self-dealing from its list of national enforcement projects for 2026,^lxxx but has stated that it will “prioritize investigations evidencing the most egregious conduct or significant harm,” including breaches of ERISA’s duty of loyalty and cases with direct evidence of non-exempt prohibited transactions.^lxxxi Whether the DOL has the capacity—or the will—to follow through remains an open question. Absent funding commensurate with the scale of its obligations, the Department may struggle to make the impact it intends on health plan affordability.

A Cost Containment Reform Agenda for ERISA

• Policymakers could clarify when ERISA’s fiduciary duties apply to PBMs and TPAs, and identify examples of compensation schemes or other contracting and business practices that may violate these duties.
• Congress could amend ERISA to directly regulate more PBM, TPA, and other service provider conduct, both to enhance oversight over its transparency requirements and to prohibit or limit anticompetitive contracting behavior and other abusive business practices.
• Congress could provide the DOL with resources and authority to more actively support employers in their role as health care purchasers.

ERISA can reduce excessive health plan spending, but legal and practical barriers limit its current reach. Three reforms, in particular, could significantly expand its impact.

First, Congress and/or the DOL could clarify when ERISA’s fiduciary duties apply to PBMs and TPAs, and identify examples of compensation schemes or other contracting and business practices that may violate these duties. The DOL could also identify types of service provider conduct or compensation structures that are likely to violate ERISA so that plan sponsors can seek to avoid them or mitigate their harm when contracting. What little guidance the DOL has issued on these topics did not account for the complexities and nuances of the current health care system and the role of PBMs and TPAs in it. ERISA’s fiduciary framework is overdue for modernization, with special attention on how it applies to health plans today.

Second, Congress could amend ERISA to directly regulate more PBM and TPA conduct, both to enhance oversight of transparency requirements and to prohibit or limit particularly abusive contracting behavior and business practices. Currently, ERISA requires group health plans to avoid or terminate contracts that violate its provisions, but market forces significantly favor service providers in negotiations. Rather than put this legal burden on employers, Congress could simply require that PBMs and TPAs regularly disclose specific plan data and compensation information—as well as other information material to plan operations, such as claims processing rules, provider contracts, and reimbursement policies and procedures—to plan fiduciaries. Congress also could bar PBMs and TPAs from engaging in specified business practices, including anticompetitive contracting practices, when providing services to group health plans. Congress could pair these requirements with strong penalties and enforcement mechanisms (including both public and private legal action) for when companies do not comply, and require that courts treat any prohibited contract terms as null and void. Congress indicated a new willingness to move in a more regulatory direction in February 2026, with the CAA ’26’s requirement that PBMs pass through 100% of the rebates they receive to the health plans they serve.^lxxxii While fiduciary claims could remain a backstop for addressing service provider conduct that Congress does not explicitly regulate, direct prohibition or regulation of known problematic PBM and TPA business practices may have greater impact than the lawsuits we see today.

Third, employers as purchasers would benefit from significantly more support evaluating and negotiating contracts with TPAs, PBMs, and other service providers. Those employers and other health plan sponsors who have tried to use information newly available under current and proposed transparency measures have encountered complex datasets that are difficult to translate into actionable purchasing strategies. Efforts to enhance transparency must be matched with unbiased, independent resources to support purchasers’ understanding and analysis of this information. If Congress appropriated the Department adequate funds, the DOL could help meet this need. For example, the DOL could collect and analyze information about health plan service provider contracts and make this information and its reports publicly available. This would help plan sponsors contextualize the information they receive, and inform potential future reforms. Congress could also authorize the DOL to operate or finance a network of assisters that are responsible for providing support to employers, as an unbiased alternative to the industry-affiliated and supported brokers and consultants that dominate the market today.

Even with these changes, however, it remains clear additional health care market reforms are needed to reduce employer health plan spending. ERISA offers important avenues to make employers better purchasers of health care and regulate the conduct of service providers that employers hire to assist in administering their health plans. ERISA, however, provides fewer clear mechanisms to contain health care prices and increase competition among health care providers. Broader market reforms could encompass health care pricing reforms, competition policy, and greater public provision of services, or some combination of these options. If implemented, employers and other plan sponsors may find that they can come to the negotiating table on more level footing. Employers also may no longer need to expend energy and resources on key issues where they tend to struggle to get any traction, like hospital prices.

ERISA alone cannot make employer coverage more affordable. But ERISA is one of many arrows in policymakers’ quiver—all of which will be needed to tame excessive health care spending.

Sources

i Health Insurance Coverage of Population Ages 0-64, KFF (2024), https://www.kff.org/state-health-policy-data/state-indicator/health-insurance-coverage-population-0-64/.

ii Nearly three-fourths (74%) of non-elderly adult workers who are eligible for employer coverage at their job enroll in that coverage. Another 15% enroll in other employer coverage as a dependent. Gary Claxton et al., Employer-Sponsored Health Insurance 101, KFF (Oct. 8, 2025), https://www.kff.org/health-costs/health-policy-101-employer-sponsored-health-insurance/.

iii Joseph Burns, CMS Reports National Health Spending Grew 7.5% in 2023, Far Outpacing Inflation, AHCJ Blog (Jan. 17, 2025), https://healthjournalism.org/blog/2025/01/cms-reports-national-health-spending-grew-7-5-in-2023-far-outpacing-inflation/; Daniel R. Arnold & Christopher M. Whaley, Who Pays for Health Care Costs? The Effects of Health Care Prices on Wages, RAND Corp., Working Paper No. WR-A621-2 (2020), https://www.rand.org/pubs/working_papers/WRA621-2.html.

iv Gary Claxton et al., Employer Health Benefits: 2025 Annual Survey 35, KFF (2025), https://files.kff.org/attachment/Employer-Health-Benefits-Survey-2025-Annual-Survey.pdf.

v Jaison R. Abel et al., Are Rising Employee Health Insurance Costs Dampening Wage Growth?, Liberty St. Econ. (Mar. 4, 2026), https://libertystreeteconomics.newyorkfed.org/2026/03/are-rising-employee-health-insurance-costs-dampening-wage-growth/.

vi Liz Hamel et al., Kaiser Family Foundation/LA Times Survey of Adults with Employer-Sponsored Insurance, KFF (May 2, 2019), https://www.kff.org/private-insurance/kaiser-family-foundation-la-times-survey-of-adults-with-employer-sponsored-insurance/; Gregory Young et al., How Many People Have Enough Money to Afford Private Insurance Cost Sharing?, Peterson-KFF Health Sys. Tracker (Mar. 10, 2022), https://www.healthsystemtracker.org/brief/many-households-do-not-have-enough-money-to-pay-cost-sharing-in-typical-private-health-plans/; Kaitlyn Vu et al., How Much Do People with Employer Plans Spend Out-of-Pocket on Cost-Sharing?, Peterson-KFF Health Sys. Tracker (Oct. 8, 2025), https://www.healthsystemtracker.org/chart-collection/how-much-do-people-with-employer-plans-spend-out-of-pocket-on-cost-sharing/.

vii See, e.g., Michael Chernew, Levels, Growth, and Semantics: The Role of Prices in Driving Health Care Spending, Health Affs. Forefront (Apr. 9, 2026), https://www.healthaffairs.org/content/forefront/levels-growth-and-semantics-role-prices-driving-health-care-spending; Irene Papanicolas et al., The US Health Spending Problem Is Still About Prices, Health Affs. Forefront (Feb. 18, 2026), https://www.healthaffairs.org/content/forefront/us-health-spending-problem-still-prices; Cynthia Cox et al., Health Care Costs and Affordability, KFF (Oct. 8, 2025), https://www.kff.org/health-costs/health-policy-101-health-care-costs-and-affordability; Dennis P. Scanlon et al., It’s the Healthcare Production Function Dummy…(And Still the Prices Stupid)!, 60 Health Servs. Res. (2025), https://onlinelibrary.wiley.com/doi/epdf/10.1111/1475-6773.14611; Cong. Budget Off., The Prices That Commercial Health Insurers and Medicare Pay for Hospitals’ and Physicians’ Services (2022), https://www.cbo.gov/publication/57778; Gerard F. Anderson et al., It’s Still the Prices, Stupid: Why the US Spends So Much on Health Care, and a Tribute to Uwe Reinhardt, 38 Health Affs. 1 (2019), https://www.healthaffairs.org/doi/10.1377/hlthaff.2018.05144.

viii Godwin, Jamie et al., One or Two Health Systems Controlled the Entire Market for Inpatient Hospital Care in Nearly Half of Metropolitan Areas in 2024, KFF (Mar 27, 2026), https://www.kff.org/health-costs/one-or-two-health-systems-controlled-the-entire-market-for-inpatient-hospital-care-in-nearly-half-of-metropolitan-areas/; Daniel R. Arnold & Brent Fulton, UnitedHealthcare Pays Optum Providers More Than Non-Optum Providers,44 Health Affs. 11 (Nov. 3, 2025), https://www.healthaffairs.org/doi/10.1377/hlthaff.2025.00155; Am. Med. Ass’n, Competition in Pharmacy Benefit Manager Markets (2025), https://www.ama-assn.org/system/files/prp-pbm-shares-hhi-2025.pdf; Jean Abraham et al., Prevalence and Profits of Insurers in the Administrative Services Only Market Serving Self-Insured Employers, 2010–22, 43 Health Affs. 1655, 1661–62 (2024), https://doi.org/10.1377/hlthaff.2024.00359; David Scheinker et al., The Dysfunctional Health Benefits Market and Implications for US Employers and Employees, 327 JAMA 323, 323 (Jan 7, 2022); Clark C. Havighurst & Barak D. Richman, The Provider Monopoly Problem in Health Care, 89 OR. L. REV. 847 (2011), https://www.antitrustinstitute.org/wp-content/uploads/2018/08/Havighurst.pdf; see also Antitrust Applied: Hospital Consolidation Concerns and Solutions: Hearing Before the Subcomm. on Competition Pol’y, Antitrust, & Consumer Rts. of the S. Comm. on the Judiciary, 117th Cong. (2021) (statement of Martin Gaynor, Professor, Carnegie Mellon University), https://www.judiciary.senate.gov/imo/media/doc/Gaynor_Senate_Judiciary_Hospital_Consolidation_May_19_2021.pdf.

ix U. S. Fed. Trade Comm’n, Interim Staff Rep., Pharmacy Benefit Managers: The Powerful Middlemen Inflating Drug Costs and Squeezing Main Street Pharmacies 9–15 (2024), https://www.ftc.gov/system/files/ftc_gov/pdf/pharmacy-benefit-managers-staff-report.pdf.

x Blumberg, Linda et al., The Complex Web of Health Care Financial Interests and Their Implications for Ever Higher Spending: An Expert Perspective, Ctr. on Health Ins. Reforms,Georgetown Univ.(2025),https://georgetown.box.com/s/rtmi4pbcyz2wav084pphsmvof9085ibp; see also Laura Tollen et al., How Administrative Spending Contributes to Excess US Health Spending, Health Affs. Forefront (Feb. 20, 2020), https://www.healthaffairs.org/content/forefront/administrative-spending-contributes-excess-us-health-spending.

xi Katherine Gudiksen et al., Hospital Consolidation Across Geographic Markets: The Role of Cross-Market Mergers, 50 J. Health Pol. Pol’y & L. 681, 695–96 (2025); Pinar Karaca-Mandic et al., The Role of Agents and Brokers in the Market for Health Insurance 3–4, Nat’l Bureau of Econ. Res., Working Paper 19342, https://www.nber.org/system/files/working_papers/w19342/w19342.pdf; Ryan Golden, Healthcare Is Hard and HR Is Relying on Brokers to Help Out, Study Shows, HR Dive (July 27, 2017), https://www.hrdive.com/news/healthcare-is-hard-and-hr-is-relying-on-brokers-to-help-out-study-shows/448017/.

xii Press Release, New Research Finds Increasing Number of Self-Insured Health Plans in Small and Medium-Sized Businesses but a Decreasing Number in Large Companies Since Passage of the Affordable Care Act of 2010, EBRI (Aug. 29, 2024), https://www.ebri.org/content/new-research-finds-increasing-number-of-self-insured-health-plans-in-small-and-medium-sized-businesses-but-a-decreasing-number-in-large-companies-since-passage-of-the-affordable-care-act-of-2010.

xiii Claxton et al., supra note 4, at 172; Abraham et al, supra note 8, at 1656, 1658–59; U. S. Fed. Trade Comm’n, supra note 9, at 9–15; Karen Handorf at al., Third-Party Administrators—The Middlemen of Self-Funded Health Insurance, Health Affs. Forefront (May 16, 2025), https://www.healthaffairs.org/content/forefront/third-party-administrators-middlemen-self-funded-health-insurance.

xiv See, e.g., U. S. Fed. Trade Comm’n, supra note 9, at8; House Comm. on Oversight & Accountability Staff, The Role of Pharmacy Benefit Managers in Prescription Drug Markets, https://oversight.house.gov/wp-content/uploads/2024/07/PBM-Report-FINAL-with-Redactions.pdf.

xv Handorf et al., supra note 13; Gudiksen et al., supra note 11, at 701–03; Kathryn L. Moore, The Next Frontier in Plan Fee Litigation: Health Plan Fees, NYU Rev. Empl. Benefits § 6 (2024); Joanne Roskey, Are You Ready for Class Action Health Care Plan Fee Litigation?, Compliance (Sept. 1, 2023).

xvi See, e.g., Trs. of Int’l Union of Bricklayers v. Elevance, Inc., No. 3:22-CV-1541, 2024 U.S. Dist. LEXIS 72579, at *4–8, 14–15 (D. Conn. Apr. 2024); Complaint at ¶¶ 2–3, 15–31, 65–78, Kraft Heinz v. Aetna Life Ins., Co., No. 2:23-cv-00317 (E.D. Tex. June 30, 2023), Dkt. No. 1; see also Handorf et al., supra note 13; David Silverstein, Weapons of Mass Corruption Part 2: Wrap Networks and Repricing, Broken Healthcare (July 6, 2026), https://www.brokenhealthcare.com/p/weapons-of-mass-corruption-part-2; Bruce Allain, Self-Funded Employer Suits Against Third Party Administrators May Be the Beginning of a Larger Trend, The Source Blog (Sept. 16, 2024), https://sourceonhealthcare.org/self-funded-employer-suits-against-third-party-administrator-may-be-the-beginning-of-a-larger-trend/; Chris Deacon, LinkedIn, https://www.linkedin.com/posts/cdeaconc_youre-going-to-need-to-sit-down-for-this-activity-7440411343838461952-zdP8/ (last visited May 5, 2026).

xvii See, e.g., Tiara Yachts, Inc., v. Blue Cross Blue Shield, 138 F.4th 457, 461–62, 464–65, 468–69 (6th Cir. 2025); Su v. BCBSM, Inc., No. 0:24-cv-00099, 2024 U.S. Dist. LEXIS 150274, at *2–7, 16–19 (D. Minn. Aug. 22, 2024); Peters v. Aetna, 2 F.4th 199, 210–12, 231, 234–36 (4th Cir. 2021); see also Handorf et al., supra note 13; Timothy Lee, Labor Department Must Address “Shared Savings Fees” to Boost Healthcare Transparency and Target Unnecessary Costs, Freedom Line (Apr. 5, 2023), https://cfif.org/v/freedom_line_blog/26234/labor-department-must-address-shared-savings-fees-to-boost-healthcare-transparency-and-target-unnecessary-costs/.

xviii Gudiksen et al., supra note 11, at 691, 693–95; Matthew Eisenberg et al., Most Large Self-Insured Employers Lack Sufficient Market Power to Effectively Negotiate Hospital Prices, 27 Am. J. Manag. Care 290 (2021), https://pmc.ncbi.nlm.nih.gov/articles/PMC9446373/; Aditi P. Sen, et al., Health Care Service Price Comparison Suggests That Employers Lack Leverage to Negotiate Lower Prices, 42 Health Affs. 1241 (2023), https://doi.org/10.1377/hlthaff.2023.00257; Christopher Garmon, Employer-Provided Health Insurance and Hospital Mergers, 8 Health Econ. Pol’y & L. 365 (2013), https://pubmed.ncbi.nlm.nih.gov/23347566/.

xix Barak Richman et al., ERISA and the Failure of Employers to Perform Their Fiduciary Duties: Evidence from a Survey of Health Plan Administrators, 54 J.L. Med. & Ethics 14, 19 (Sept. 2025); Sara J. Singer & Margaret C. Nikolov, An Absence of Accountability: Evidence of Employers’ Failure to Measure and Manage Employee Health Benefits Administration, 336 Soc. Sci. & Med. 116684 (2025); see also Gudiksen et al., supra note 11, at 687–91.

xx Christine H. Monahan, ERISA 101: The United States’ Hands-Off Approach to Regulating Employer Health Plans, Ctr. on Health Ins. Reforms, Georgetown Univ., https://chir.georgetown.edu/erisa-101-united-states-hands-off-approach-regulating-employer-health-plans/; Lauren C. Roth, The Collective Fiduciary, 94 Neb. L. Rev. 511, 550 (2016).

xxi Under the tax code provisions of the Affordable Care Act—not ERISA—employers with at least fifty full-time or full-time equivalent employees must either offer minimum essential coverage that meets certain standards or pay a shared responsibility payment to the Internal Revenue Services. See Internal Revenue Serv., Employer Shared Responsibility Provisions, https://www.irs.gov/affordable-care-act/employers/employer-shared-responsibility-provisions (last visited May 4, 2026).

xxii Sherrie Boutwell, 50 Years of ERISA: Health & Welfare Plans, 32 J. Pension Benefits 1 (Autumn 2024), available at https://www.boutwellfay.com/post/50-years-of-erisa-health-welfare-plans; Merton C. Bernstein, ERISA: How it Came to Be; What it Did; What to Do About it, 6 Drexel L. Rev. 439, 440–42 (2014).

xxiii U.S. Dep’t of Lab., Health Plans and Benefits, https://www.dol.gov/general/topic/health-plans (last visited Mar. 26, 2026).

xxiv See 29 U.S.C. §§ 1161–1169.

xxv See 29 U.S.C. §§ 1181–1183.

xxvi See 29 U.S.C. § 1185a.

xxvii 29 U.S.C. §§ 1002(21)(A), 1104(a).

xxviii 29 U.S.C. §§ 1106(b)(1), (2), (3).

xxix 29 U.S.C. § 1104(a)(1)(A)(ii).

xxx Tibble v. Edison Int’l, 575 U.S. 523, 529 (2015) (duty to monitor 401k investment alternatives based on trust law); Understanding Your Fiduciary Responsibilities Under a Group Health Plan 6, U.S. Dep’t of Lab., (Sept. 2023), https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/publications/group-health-plan-fiduciary-responsibilities.pdf; U.S. Dep’t of Lab., Emp. Benefits Sec. Admin., ERISA Fiduciary Advisor, https://webapps.dol.gov/elaws/ebsa/fiduciary/q4f.htm (last visited Apr. 9, 2026).

xxxi Reasonable Contract or Arrangement Under Section 408(b)(2)—Fee Disclosure, 72 Fed. Reg. 70,988, 70,988, 70,955 (Dec. 13. 2007).

xxxii 29 U.S.C. §§ 1106(a), 1108(b)(2).

xxxiii 29 U.S.C. § 1132(l); Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238 (2000).

xxxiv 29 U.S.C. §§ 1132(a), (i), (l).

xxxv Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. BB, tit. II, §§ 201(b), 202, 134 Stat. 1182, 2894–95, 2899–902 (2020) (codified at 29 U.S.C. §§ 1108(b)(2), 1185m(a)(1)) (hereinafter CAA ’21); Consolidated Appropriations Act, 2026, Pub. L. No. 119-75, § 6702(c) (codified at 29 U.S.C. §§ 1108(b)(2)(B)) (hereinafter CAA ’26).

xxxvi Medicare and Medicaid Programs: Price Transparency Requirements for Hospitals to Make Standard Charges Public, 84 Fed. Reg. 65,524 (Nov. 27, 2019) (codified at 45 C.F.R. pt. 180); Transparency in Coverage, 85 Fed. Reg. 72,158 (Nov. 12, 2020) (codified at 45 C.F.R. pt. 147).

xxxvii Improving Transparency into Pharmacy Benefit Manager Fee Disclosure, 91 Fed. Reg. 4348 (proposed Jan. 30, 2026) (to be codified at 29 C.F.R. pt. 2550).

xxxviii See generally Amy Monahan & Barak D. Richman, Hiding in Plain Sight: ERISA’s Cure for the $1.5 Trillion Health Benefits Market, 42 Yale J. Reg. 234 (2025); Moore, supra note 15; Roskey, supra note 15.

xxxix See e.g., Brian Anderson, 155 ERISA Fiduciary Lawsuits Filed in 2025 as Litigation Broadens, 401(k) Specialist (Feb. 10, 2026), https://401kspecialistmag.com/155-erisa-fiduciary-lawsuits-filed-in-2025-as-litigation-broadens/; U.S. Gov’t Accountability Off., GAO-24-107125, 401(k) Plans: Reported Impacts of Fee Disclosure Regulations, and DOL Efforts to Support Implementation of Regulations 4 (2024), https://www.gao.gov/products/gao-24-107125; George S. Mellman & Geoffrey T. Sanzenbacher, 401(k) Lawsuits: What Are the Causes and Consequences?, Ctr. for Ret. Res. Issue Br. 18-8 (May 2018), https://crr.bc.edu/401k-lawsuits-what-are-the-causes-and-consequences/; Miles & Stockbridge P.C., 401(k) Plan Fee Litigation Update, JD Supra (Dec. 1, 2016), https://www.jdsupra.com/legalnews/401-k-plan-fee-litigation-update-45192/.

xl See, e.g., Handorf et al., supra note 13; Sidney Haitoff et al., Employer-Provider Direct Contracting: Practice and Policy, Health Affs. Forefront (Apr. 1, 2025), https://www.healthaffairs.org/content/forefront/employer-provider-direct-contracting-practice-and-policy.

xli See, e.g., Peters, 2 F.4th at 210–211 (describing plaintiffs’ allegations that TPA and subcontractor buried administrative fees in claims to keep them hidden); Hi-Lex Controls, Inc. v. Blue Cross Blue Shield of Mich., 751 F.3d 740, 742–744 (6th Cir. 2014) (describing plaintiffs’ allegations that TPA inflated hospital claims with hidden surcharges to retain additional compensation); United Teamster Fund v. Magnacare Admin. Servs., 39 F. Supp. 3d 461, 467 (S.D.N.Y. Aug. 14, 2014) (describing plaintiffs’ allegations that TPA secretly retained portion of diagnostic fee schedule payments); Press Release, U.S. Dep’t of Lab., New York-Based Health-Care Claims Administrator to Pay $14.5 Million to Health Plans Following US Department of Labor Investigation (July 25, 2017), https://www.dol.gov/newsroom/releases/ebsa/ebsa20170725; see also Handorf et al., supra note 13.

xlii See, e.g., Gudiksen, supra note 11, at 695–96, 701–03; Adam J. Fein, Do Plan Sponsors Understand How Their PBMs Make Money? A New KFF Survey Tells a Discouraging Story, Drug Channels (Sept. 12, 2023), https://www.drugchannels.net/2023/09/do-plan-sponsors-understand-how-their.html; Marshall Allen, The Health Insurance Industry Is Paying Your Broker to Push Higher-Priced Plans, ProPublica (Feb. 20, 2019), https://www.propublica.org/article/health-insurance-brokers-cost-commissions-bonuses; ERISA Advisory Council, PBM Compensation and Fee Disclosure, 20–22 (2014), https://www.dol.gov/sites/dolgov/files/ebsa/pdf_files/2014-pbm-compensation-and-fee-disclosure.pdf.

xliii CAA ’21, § 202.

xliv CAA ’21, § 201(b).

xlv Scott Sinder, Increased Expectation and Exposure for Plan Fiduciaries, Leader’s Edge (Apr. 1, 2024), https://www.leadersedge.com/healthcare/increased-expectation-and-exposure-for-plan-fiduciaries.

xlvi Letter from Robert C. “Bobby” Scott, Chairman, & Virginia Foxx, Ranking Member, H. Comm. on Educ. & Lab., to Ali Khawar, Acting Assistant Sec’y, Emp. Benefits Sec. Admin. (June 24, 2021), https://democrats-edworkforce.house.gov/imo/media/doc/bipartisan_scott-foxx_letter_to_ebsa_re_health_transparency.pdf.

xlvii CAA ’26, § 6702(c).

xlviii 29 U.S.C. § 1108(b)(2)(ii)(II); Emp. Benefits Sec. Admin., U.S. Dep’t of Lab., Field Assistance Bulletin No. 2021-03, Temporary Enforcement Policy Regarding Group Health Plan Service Provider Disclosures Under ERISA Section 408(b)(2)(B) (Dec. 30, 2021), https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2021-03.

xlix See Improving Transparency, 91 Fed. Reg. at 4348–49.

l Stacey Pogue & Abigail Knapp, Leveraging Data to Control Costs: How Five State Employee Health Plans Use Claims and Price Transparency Data to Improve Affordability, Ctr. on Health Ins. Reforms, Georgetown Univ., https://georgetown.app.box.com/file/2213752196887; Gary Claxton et al., Employer Strategies to Reduce Health Costs and Improve Quality Through Network Configuration, Peterson-KFF Health Sys. Tracker, https://www.healthsystemtracker.org/brief/employer-strategies-to-reduce-health-costs-and-improve-quality-through-network-configuration/ (last visited Apr. 16, 2026).

li 29 U.S.C. §§ 1185m(a)(1), (3)

lii See, e.g., Memorandum of Law in Support of Defendants’ Motion to Dismiss Plaintiffs’ Complaint at 25, Trs. of Int’l Union of Bricklayers & Allied Craftworkers Local 1 Conn. Health Fund v. Elevance, Inc., No. 3:22-cv-01541 (D. Conn. Mar. 10, 2023), Dkt. No. 41-1 (arguing the gag clause ban “does not impose any duty on Defendants as service providers, nor does it give Plaintiffs the right to declare ‘void’ as a matter of law any contractual terms that the parties had freely negotiated”); see also Gudiksen et al., supra note 11, at 691 (describing consolidation in the TPA industry as a “jail”).

liii See, e.g., Amended Class Action Complaint at ¶¶ 9, 51–69, Trs. of Int’l Union of Bricklayers & Allied Craftworkers Local 1 Conn. Health Fund v. Elevance, Inc., No. 3:22-cv-01541 (D. Conn. July 15, 2024), Dkt. No. 91; Purchaser Bus. Grp. on Health, Leveraging Health Care Price Transparency: Making Transparency Data Actionable for Employers and Public Purchasers 27 (Oct. 2025), https://www.pbgh.org/initiative/pbgh-health-care-data-demonstration-project/; Nat’l All. of Healthcare Purchaser Coalitions, Pulse of the Purchaser 2025 Survey Results 8 (Sept. 8, 2025), https://www.nationalalliancehealth.org/resources/pulse-of-the-purchaser-2025-survey-results/; The Ownership of Pricing and Claims Data, Benefitfocus Blog (Apr. 18, 2024), https://www.benefitfocus.com/resources/blog/ownership-pricing-and-claims-data; Sabah Bhatnagar et al., Improving and Strengthening Employer-Sponsored Insurance 22-23, Bipartisan Pol’y Ctr. (2022), https://bipartisanpolicy.org/wp-content/uploads/2022/10/BPC-Improving-and-Strengthening-Employer-Sponsored-Insurance-Oct-2022.pdf; Chris Deacon, LinkedIn, https://www.linkedin.com/posts/cdeaconc_when-a-self-funded-employer-tries-to-take-activity-7363547969691824128-W-Nq/ (last visited May 5, 2026).

liv See, e.g., Patients Deserve Price Tags Act, S. 2355, 119th Cong. (2025); Lowering Health Care Costs for Americans Act, S. 1339, 119th Cong. (2025); Health Data Act of 2023, H.R. 4507, 118th Cong. (2023).

lv 29 U.S.C. §§ 1002(21)(A), 1104(a), 1132(a).

lvi See Chelsea Ashbrook McCarthy et al., Excessive Fee Cases: Not Just for Retirement Plans Anymore, Holland & Knight (Apr. 3, 2025), https://www.hklaw.com/en/insights/publications/2025/04/excessive-fee-cases-not-just-for-retirement-plans-anymore; Miller & Chevalier, The ERISA Edit: More ERISA Class Action Claims Involving Health Plans, Employee Benefits Alert (Mar. 21, 2025), https://www.millerchevalier.com/publication/erisa-edit-more-erisa-class-action-claims-involving-health-plans; Bruce Allain, supra note 16; see also Georgetown L.: Litigation Tracker, ERISA Litigation, https://litigationtracker.law.georgetown.edu/issues/erisa/ (last visited Apr. 12, 2026).

lvii See, e.g., Defendant Blue Cross Blue Shield of Michigan’s Counterclaims Against Tiara Yachts, Count I, Tiara Yachts v. Blue Cross Blue Shield of Mich., No. 1:22-cv-603 (W.D. Mich. Sept. 9, 2025), Dkt. No. 84.

lviii Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

lixLockheed Corp. v. Spink, 517 U.S. 882, 887 (1996).

lx See, e.g., Knudsen v. MetLife Grp., Inc., 117 F.4th 570, 578–82 (3rd Cir. 2024); Winsor v. Sequoia Benefits & Ins. Servs., 62 F.4th 517, 524–25 (9th Cir. 2023); Loren v. Blue Cross & Blue Shield, 505 F.3d 598, 608–09 (6th Cir. 2007); Glanton v. Advance PCS, Inc., 465 F.3d 1123, 1125 (9th Cir. 2006); Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 201–203 (2d Cir. 2005); Stern v. JPMorgan Chase & Co., No. 1:25-cv-02097, 2026 U.S. Dist. LEXIS 47281, at *18–20 (S.D.N.Y. Mar. 9, 2026); Navarro v. Wells Fargo & Co., No. 0:24-cv-03043, 2026 U.S. Dist. LEXIS 42932, at *23–38 (D. Minn. Mar. 3, 2026); Lewandowski v. Johnson & Johnson Grp. Health Plan, No. 3:24-cv-00671, 2025 U.S. Dist. LEXIS 232825, at *9–17 (D.N.J. Nov. 26, 2025); Navarro v. Wells Fargo & Co., No. 0:24-cv-03043, 2025 U.S. Dist. LEXIS 53444, at *14–31 (D. Minn. Mar. 24, 2025); Lewandowski v. Johnson & Johnson, No. 3:24-cv-00671, 2025 U.S. Dist. LEXIS 12732, at *10–13 (D.N.J. Jan. 24, 2025); Cox v. Blue Cross Blue Shield of Mich., 216 F. Supp. 3d 820, 826 (E.D. Mich. 2016). But see Barbich v. Northwestern Univ., No. 1:25-cv-06849 (N.D. Ill. Apr. 2, 2026).

lxi See, e.g., Peters, 2 F.4th at 220–25; Stern., 2026 U.S. Dist. LEXIS 47281, at *20–27 (S.D.N.Y. Mar. 9, 2026); Peters v. Aetna, Inc., No. 1:15-cv-00109, 2023 U.S. Dist. LEXIS 97526, at *15–16 (W.D.N.C. June 5, 2023).

lxii See, e.g., Deluca v. Blue Cross Blue Shield of Mich., 628 F.3d 743, 747–48 (6th Cir. 2010); Chi. Dist. Council of Carpenters Welfare Fund v. Caremark, Inc., 474 F.3d 463, 472–76 (7th Cir. 2007); Schulist v. Blue Cross of Iowa, 717 F.2d 1127, 1132 (7th Cir. 1983); Trs. of Int’l Union of Bricklayers, 2024 U.S. Dist. LEXIS 72579, at *24; In re Express Scripts/Anthem ERISA Litig. 285 F. Supp. 3d 655, 678–79 (S.D.N.Y. 2018); Am. Psychiatric Assoc. v. Anthem Health Plans, 50 F. Supp. 3d 157, 169–70 (D. Conn. 2014); Moeckel v. Caremark, Inc., 622 F. Supp. 2d 663, 677–80 (M.D. Tenn. 2007); Mulder v. PCS Health Sys., 432 F. Supp. 2d 450, 458 (D.N.J. 2006).

lxiii See, e.g., In re: UnitedHealth Group PBM Litigation, Nos. 16-CV-3352, 16-CV-3496, 16-CV-3914, 16-CV-3996, 16-CV-4119, 16-CV-4129, 16-CV-4130, 16-CV-4136, 2017 U.S. Dist. LEXIS 208328, at *41–42 (D. Minn. Dec. 19, 2017); Am. Psychiatric Assoc., 50 F. Supp. 3d at 169–70; Mulder, 432 F. Supp. 2d at 458–59.

lxiv Stern, 2026 U.S. Dist. LEXIS 47281, at *38–39 (S.D.N.Y. Mar. 9, 2026).

lxv Compare, e.g., Mass. Laborers’ Health & Welfare Fund v. Blue Cross Blue Shield of Mass., 66 F.4th 307, 317–328 (1st Cir. 2023), and Trs. of Int’l Union of Bricklayers, 2024 U.S. Dist. LEXIS 72579, at *18–19, with Tiara Yachts, 138 F.4th at 468–70, and Leprino Foods Co. v. United Healthcare Servs., Inc., No. 1:24-cv-00712, 2025 U.S. Dist. LEXIS 82558, at *4–5 (D. Colo. Mar. 17, 2025); see also In re: UnitedHealth Group PBM Litigation, 2017 U.S. Dist. LEXIS 208328, at *38–39; Mulder, 432 F. Supp. 2d at 456, 461.

lxvi See, e.g., Peters, 2 F.4th at 230–38; Hi-Lex Controls, Inc., 751 F.3d at 744–51; Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Mich., 722 F.3d 861, 867–69 (6th Cir. 2013); Patelco Credit Union v. Sahni, 262 F.3d 897, 911 (9th Cir. 2001); Srein v. Soft Drink Workers Union, Local 812, 93 F.3d 1088m 1098 (2d Cir. 1996); United Teamster Fund, 39 F. Supp. 3d at 470–71; AT&T v. Empire Blue Cross & Blue Shield, No. 93-cv-01224, 1994 U.S. Dist. LEXIS 21091, at *22–23, 27–28 (D.N.J. July 18, 1994).

lxvii See, e.g., Tiara Yachts, 138 F.4th at 468–70; United Teamster Fund, 39 F. Supp. 3d at 470; Sixty-Five Sec. Plan v. Blue Cross & Blue Shield, 583 F. Supp. 380, 388 (S.D.N.Y. 1984).

lxviii See, e.g., In re Express Scripts/Anthem ERISA Litig., 285 F. Supp. 3d at 679–81; In re UnitedHealth Group PBM Litigation, 2017 U.S. Dist. LEXIS 208328, at *39–41; Moeckel, 622 F. Supp. 2d at 52–72; Mulder, 432 F. Supp. 2d at 459–60; Bickley v. Caremark Rx, Inc., 361 F. Supp. 2d 1317, 1332–33 (N.D. Ala. 2004).

lxix Mohr-Lercara v. Oxford Health Ins., Inc., No. 18-cv-01427, 2019 U.S. Dist. LEXIS 52962, at *20–21 (S.D.N.Y. Mar. 28, 2019); Negron v. Cigna Health & Life Ins., 300 F. Supp. 3d 341, 356–59 (D. Conn. 2018).

lxx In Stern, the court allowed plan members’ prohibited transaction claim against their employer to proceed, but expressed skepticism about its merits. 2026 U.S. Dist. LEXIS 47281, at *43–47.

lxxi 29 U.S.C. §§ 1021–1030, 1131–36.

lxxii 29 U.S.C. § 1023; see, e.g., Proposed Revision of Annual Information Return/Reports, 81 Fed. Reg. 47,534 (proposed July 21, 2016) (to be codified at 29 C.F.R. pts. 2520, 2590), https://www.federalregister.gov/documents/2016/07/21/2016-14893/proposed-revision-of-annual-information-returnreports (never finalized).

lxxiii See Handorf at al., supra note 13.

lxxiv 29 U.S.C. § 1135 (authorizing the Secretary of Labor to “prescribe such regulations as he finds necessary or appropriate to carry out the provisions of this subchapter”).

lxxv 29 C.F.R. § 2509.75-8 (2026).

lxxvi Caitlin Soto, Purchaser Business Group on Health Remarks, Employee Benefits Security Admin., U.S. Dep’t of Lab. (Feb. 23, 2026), https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/erisa/pbgh-remarks.

lxxvii Improving Transparency, 91 Fed. Reg. at 4372.

lxxviii Emp. Benefits Sec. Admin., U.S. Dep’t of Lab., FY 2027 Congressional Budget Justification (2026), https://www.dol.gov/sites/dolgov/files/general/budget/2027/CBJ-2027-V2-01.pdf; Employee Benefits Sec. Admin., U.S. Dep’t of Lab., FY 2026 Congressional Budget Justification (2025), https://www.dol.gov/sites/dolgov/files/general/budget/2026/CBJ-2026-V2-01.pdf.

lxxix Id.; Employee Benefits Security Administration, About EBSA, https://www.dol.gov/agencies/ebsa/about-ebsa (last visited Apr. 1, 2026); U.S. Dep’t of Lab., FY 2025 Annual Performance Report & FY 2027 Annual Performance Plan (2026), https://www.dol.gov/sites/dolgov/files/general/budget/2027/FY2025APR-FY2027APP.pdf.

lxxx Katherine B. Kohn et al., Decoding DOL’s 2026 Enforcement Strategy for Plan Sponsors and Service Providers, Thompson Hine (Jan. 27, 2026), https://www.thompsonhine.com/insights/decoding-dols-2026-enforcement-strategy-for-plan-sponsors-and-service-providers/.

lxxxi Emp. Benefits Sec. Admin., U.S. Dep’t of Lab., Field Assistance Bulletin No. 2026-01, Guiding Principles for EBSA Enforcement Priorities, (Apr. 14, 2026), https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2026-01.

lxxxii CAA ’26, § 6702(a).