Our “health plan hygiene” series has focused on steps that fiduciaries of employer-sponsored group health plans can take to ensure they meet their fiduciary responsibilities. This issue has been brought to the forefront recently due to a wave of class action lawsuits that have been brought against group health plan fiduciaries. In our last post, we discussed the importance of a thorough RFP process and an overview of important contractual provisions. This post will address the issue at the center of those class action lawsuits: the fees.
Third-Party Vendor Fee Arrangements
Health plan fiduciaries have the duty to ensure that the fees paid to third-party vendors are reasonable. This can feel like an overwhelming task because health plans, especially self-insured health plans, can hire multiple third-party vendors to keep the plan running. For example, third-party administrators (“TPAs”), network providers, repricing servicers, claims auditors, pharmacy benefit managers (“PBMs”), telehealth providers, and behavioral health providers may all be involved in the administration of a single health plan.
Health plan fiduciaries should educate themselves on the potential pricing methods and fee arrangements with each of the third-party service providers. For example:
- “Bundled” Services and Fee Arrangements. Because of the seemingly endless number of third-party vendors that may be required for health plan administration, fiduciaries will often rely on one TPA to manage and contract with the other third-party vendors. While this can ease the burden of tracking multiple vendors, it remains the fiduciaries’ duty to ensure that the fees are reasonable for each vendor. That means that the fiduciaries must understand the services provided by each vendor, and the fees charged by each vendor. Fiduciaries should not rely on the TPA to manage the overall fees or to provide one total billed amount for all vendors without a breakdown.
- Pharmacy Benefit Managers. The recent class action lawsuits have focused heavily on PBM fees. PBM fee structures have historically been complex and not particularly transparent, so it is essential that plan fiduciaries understand PBM pricing models.
- Pass-Through Pricing. Under the pass-through pricing model, the PBM charges the plan the drug acquisition cost (the amount paid to the drug manufacturer). Any negotiated rebates are also passed through to the plan. The PBM receives compensation from the plan via a per-employee or per-month rate to the plan. Proponents of the pass-through pricing model argue that pass-through pricing provides the most transparency and consistency for the plan.
- Spread Pricing. Under the spread pricing model, the PBM and the plan set the price that the plan pays for prescription drugs by reference to a specific benchmark price. The PBM then negotiates a lower price with the drug manufacturer, and the PBM receives compensation on the difference (the “spread”) between the PBM’s acquisition cost and the benchmark price. PBMs in this arrangement are financially motivated not to make formulary decisions based on which drugs have the lowest cost to the plan and beneficiaries but rather based on which drugs have the most significant spread.
- Rebates. PBMs negotiate rebates from drug manufacturers. The PBM may keep all or a portion of the rebate instead of paying the rebate back to the plan.
- Brokers. Fiduciaries will often hire brokers to help identify and retain service providers for a health plan. Brokers can provide an important service. However, some brokers enter into commission or other compensation arrangements with service providers. It is essential that plan fiduciaries are aware of any compensation or commission arrangements between a broker and other third-party vendors to ensure that the broker is providing the best objective recommendations, not recommendations motivated by financial gain.
Potential Impacts
Recent class actions have highlighted the complexities and potential liabilities associated with third-party vendor fees. It is essential fiduciaries be well-informed about current third-party vendor contracts or agreements, including their termination or renewal periods. These periods can offer opportunities to reassess and renegotiate fees.
