Level-funded health plans are booming. They are marketed as the best of both worlds: the cost efficiency of self-funding combined with the predictability of fully insured premiums. Employers hear promises of stable monthly payments, potential refunds and less administrative burden.
Yet when you move past the marketing language and look inside the actual contracts, a very different story comes into view. In my recent review of a level-funded plan from a major insurance company, the findings were unmistakable. Employers are entering arrangements that carry far more risk than they realize.
These risks are not rare or theoretical. They are baked into the product’s structure.
See also: Fiduciary time bombs: What Fortune 500 lawsuits reveal about HR’s rising risk
The comfort of predictability until reality sets in
The sales narrative is straightforward. You pay a predictable monthly amount, and your financial exposure is capped. The insurer even provides a clean visual showing how monthly funding, year-end reconciliation and surplus credits work.
However, the contract contradicts the story’s simplicity. Many administrative expenses are excluded explicitly from stop-loss coverage. These include audit costs, case management fees, PBM administrative charges, clinical review fees, subrogation fees and the costs to fix claims errors. The employer must pay for all of these.
The result is that the apparent maximum liability is not truly a maximum at all. It is a marketing talking point.
The fiduciary trap that most employers never see coming
Many employers assume that because a large carrier administers the claims, the carrier must also hold fiduciary responsibility. When brokers request amendments to clarify fiduciary designation, carriers often respond that such changes cannot be made and that the insurer is acting as a fiduciary to ensure compliance.
Yet the contract states the opposite. The carrier is not the plan administrator. The employer accepts full responsibility for the plan, including compliance, SPDs, benefit design and oversight.
Under ERISA, if you hold the responsibility, you also have the liability. It can even be personal assets liability. This is the blind spot that places employers in danger without their knowledge.
Cross-plan offsetting: A practice employers never agreed to
Frequently, buried in the claims administration process is a practice known as cross-plan offsetting. It allows the insurer to use funds associated with one health plan to recover money allegedly owed by a separate health plan.
Federal courts have already flagged this practice as raising serious ERISA concerns. The Department of Labor has echoed similar warnings.
Yet employers are told the practice is standard and cannot be removed. If regulators find this to be a prohibited transaction, the employer will bear fiduciary liability, not the carrier. Most employers have no idea this practice exists.
Pharmacy revenue that never reaches the plan
Another quiet reality within level-funded plans involves pharmacy rebates and spread pricing. In many arrangements, those dollars stay with the carrier. When asked if rebates could flow back to the plan, the carrier responded that no level-funded carriers do this.
Employers often assume these savings reduce their costs. Instead, the plan rarely sees them.
Compliance gaps that trigger federal scrutiny
In the contract reviewed, several provisions met the federal definition of gag clauses. These clauses restrict access to provider cost and quality data. If a plan fails to file the required Gag Clause Attestation, penalties of $100 per participant per day can apply, and the Department of Labor may initiate a fiduciary audit.
If the attestation is filed incorrectly, which is easy to do when the contract contains prohibited language, it becomes a fiduciary breach.
Federal regulators do not view these breaches as minor paperwork problems. They view them as evidence of failed fiduciary oversight.
Critical gaps in cybersecurity, mental health parity, ACA and HIPAA
The contract also lacked several compliance safeguards that employers are required to maintain. These included the absence of a mental health parity analysis, unclear HIPAA privacy responsibilities, missing breach notification standards, no assurance of third-party cybersecurity audits and incomplete support for federal transparency rules.
When these gaps exist, the liability rests on the employer, not the carrier.
Employers must advance 100% of claims
The most surprising discovery for many employers is that they must advance all claim payments. This is true even when claims exceed monthly funding. The carrier may choose to advance funds, but it is not required to do so and can stop at any time. Stop loss reimbursement flows to the carrier first. If reimbursement is delayed or denied, the carrier can withdraw funds from employer accounts.
This creates a very real possibility of a liquidity crisis if a catastrophic claim hits.
The predictable monthly payment structure that employers believe they purchased can disappear instantly.
Employers are making decisions without the information they need
Level-funded plans are not inherently bad. They are, however, often misunderstood and misrepresented. Employers sign these agreements believing they are choosing a safe and straightforward option, when in fact they are taking on a structure that demands careful oversight, legal review and ongoing monitoring.
The real problem is not the plan itself. It is the lack of transparency. It is the misplaced assumption that someone else is protecting the employer. It is the idea that a plan that looks simple must be simple.
The reality is that unless someone with fiduciary expertise reviews these contracts line by line, employers do not know what they have signed.
The competitive advantage for advisors and employers
Most advisors sell products. Very few identify the hidden risks inside them. In a marketplace where carriers offer take-it-or-leave-it contracts and employers lack meaningful negotiating leverage, insight becomes the most powerful differentiator.
The risks are real. The exposures are avoidable. The value comes from seeing what others overlook.
