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Today, for employers, "the standard is not very clear," Levitt said.

The new lawsuits are part of an effort by the plaintiffs, the defendants and the courts to clarify the standard, Levitt said.

"The law and facts have not been fully framed," he said. "But they will be over the next few years."

ERISA: Employers may be familiar with hearing about ERISA fiduciary responsibility in connection with bad administrators' efforts to loot pension plans, or with legal battles over retirement plan fiduciaries' fees or investment decisions.

ERISA also applies to health plans.

The Consolidated Appropriations Act of 2021 created new ways for health plan sponsors to get much more information from brokers, plan administrators, PBMs, insurers and other plan service providers.

Levitt and his clients contend that CAA 2021 requires health plan fiduciaries to get and analyze the data made available by the new transparency rules.

The standards: The ERISA "duty of prudence" standard requires a health plan fiduciary to act according to the standards prevailing when the fiduciary acts.

"Now," Levitt said, "there's a heightened standard."

Levitt said it's not clear what health plan fiduciaries have to do to meet the new standard.

But he suggested that cautious health plan fiduciaries should work to build efforts to get and analyze as much information as possible into every aspect of running the plan.

When a plan is putting out a request for proposals for insurers, PBMs or other service providers, the RFP should include data access requirements, he said.

The sponsor should get compensation and conflict-of-interest information from brokers and consultants, and it should understand the kinds of bidders its advisors are considering, he said.

If, for example, advisors are rejecting bids from PBMs that promise to provide full compensation transparency, the sponsor should ask why, Levitt said.

The nitty gritty: Levitt said sponsors and their advisors also should try to understand the details about how PBMs and other players operate, to make sure they can interpret the vendors' disclosures.

A PBM might say that it's passing all savings from manufacturers' prescription drug rebates on to the plans, but it might not say that an affiliate is a rebate aggregator, Levitt said.

He described a situation in which a manufacturer provides $100,000 in rebates.

The rebate aggregator could take $10,000 of the savings and pass $90,000 on to the PBM. The PBM could pass all $90,000 of the rebates it received on to the employer — without mentioning that its affiliate took a $10,000 cut.

Levitt suggested that employers also need to look carefully at which specialty generic drugs are on the list of covered drugs, how the PBM provides those drugs, and what entities are getting paid how much for those drugs.

Dusty windows: Levitt said another concern is how the parties involved are interpreting the CAA 2021 transparency provisions and other data disclosure provisions.

In some cases, for example, a PBM might limit a plan's attorney to looking at records in a room in the PBM's offices, using only a pencil and paper to take notes.

"One question is how hard you have to push to get the data," Levitt said.

It's not clear whether an employer simply has to ask for data, file an appeal, file for arbitration or go to court, Levitt said.