LEGISLATION PROHIBITS ‘GAG’ CLAUSES ON PRICE AND QUALITY INFORMATION
Legislation Prohibits ‘Gag’ Clauses on Price and Quality Information
A new federal law prohibits group health plans (ERISA and non-ERISA self-funded and fully insured group plans and non-federal governmental plans) and health insurers offering group health insurance coverage (group health plan/insurer), from entering into contracts that contain “gag” clauses, or provisions that restrict the group health plan/insurer from accessing and sharing certain information.
Effective Now The Consolidated Appropriations Act, 2021 (CAA) became effective Dec. 27, 2020. It contains provisions designed to increase transparency in healthcare pricing and quality information.
What is Prohibited The CAA prohibits a group health plan/insurer from entering into a contract with a healthcare provider, network or association of providers, third-party administrator, or other service providers offering access to a network of providers, if the contract would directly or indirectly restrict the group health plan/insurer from any of the following:
- Providing provider-specific cost or quality-of-care information or data, through a consumer engagement tool or any other means, to referring providers, the plan sponsor, enrollees, or individuals eligible to become enrollees of the plan/coverage
- Electronically accessing, upon request, de-identified claims and encounter information or data for each enrollee in the plan or coverage, upon request and consistent with the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Genetic Information Nondiscrimination Act of 2008 and the Americans with Disabilities Act including, on a per-claim basis:
- Financial information, such as the allowed amount, or any other claim-related financial obligations included in the provider contract
- Provider information, including name and clinical designation
- Service codes
- Any other data element included in claim or encounter transactions
- Sharing information or data described in the bullets above or directing that such data be shared with a business associate, consistent with HIPAA
Individual Health Insurers In addition, health insurance issuers offering individual health insurance coverage may not enter into any such agreement that would directly or indirectly restrict them from providing data as described in the first bullet above, or from sharing such data with a HIPAA business associate for plan design, plan administration, and plan, financial, legal, and/or quality-improvement activities.
Reasonable Restrictions on Public Disclosure Still Allowed The legislation allows a healthcare provider, network, association of providers, or other service provider to place reasonable restrictions on the public disclosure of this information.
Annual Attestation Group health plans and health insurance issuers will be required to submit to the applicable federal agency an annual attestation that the plan or insurer is in compliance with these requirements. Trustmark anticipates federal agencies will issue regulations containing further guidance. We will share additional information as it becomes available.