By: HUB’s EB Compliance Team

The three agencies enforcing the Affordable Care Act and related laws have released their sixty-ninth set of FAQs. These cover issues under the No Surprises Act and the Gag Clause Prohibition and Attestation. Of most immediate interest to employers are the clarifications around what constitutes a Gag Clause and the contracts that are subject to the restriction.

Gag Clause Background

The Consolidated Appropriations Act, 2021 (“CAA”) directs that group health plans and health insurance issuers cannot enter into a contract using provisions that limit participant access to key information. Specifically, plans and carriers cannot contract with a health care provider, network or association of providers, TPA, or other service provider offering access to a network of providers (collectively, “provider/network entities”) that would, directly or indirectly, restrict the plan or issuer from:

  1. making provider-specific cost or quality of care information or data available to active or eligible participants, beneficiaries, and enrollees of the plan or coverage, plan sponsors, or referring providers;
  2. electronically accessing de-identified claims and encounter information or data for each participant, beneficiary, or enrollee in the plan or coverage consistent with applicable privacy regulations, upon request; or
  3. sharing such information or data described in (1) and (2), or directing such data be shared, with a business associate, consistent with applicable privacy regulations.

To be clear, although the gag-clause prohibition prevents the plan from having contracts with these provider/network entities that restrict these disclosures, it does not necessarily compel any service provider or network to provide this information. This is where the new FAQ guidance seems to take its cue. Using the language around “indirectly” restricting, the agencies have proactively sought, through these FAQs, to make data as available as possible.

The FAQs

These FAQs make some important clarifications about the extent of these restrictions. First, if the plan has a contract with a TPA (as most self-funded plans do), and that TPA in turn has contracts with provider/network entities, the FAQs state that TPA’s contracts with those “downstream” entities also cannot have clauses restricting disclosure. The agencies state that it would be a violation of the Gag Clause rule since it would indirectly prevent disclosures to a plan’s business associate (namely, the TPA). As such, the agencies expect that the plan’s contract with the TPA blocks the TPA from having such clauses in its contracts with provider/network entities.

Second, the disclosure of de-identified data cannot hinge on the discretion of the provider/network entity. In other words, the contract cannot say that de-identified data will only be disclosed if approved/allowed by the provider/network entity. The FAQs preclude plans and carriers from having their hands restrictively tied in this manner.

In addition, the FAQs state that a limitation on the scope, scale, or frequency of electronic access to de-identified claims encounter information or data is considered a prohibited restriction. In other words, plans and business associates must have electronic access to this data on request. The FAQs give the following examples of impermissible gag clauses:

  • Limiting access to a statistically significant or the “minimum necessary” number of de-identified claims;
  • Limiting the scope of access to the data to specific, narrow purposes (such as limiting access to the context of an audit);
  • Unreasonably limiting the frequency of claims reviews (e.g., no more than once per year);
  • Limiting the number and types of de-identified claims that a plan or issuer may access;
  • Restricting the data elements of a de-identified claim that a plan or issuer may access; and
  • Providing access to de-identified claims data only on the TPA’s or service provider’s physical premises.

Presuming the above changes are properly observed and enforced, the changes should allow de-identified data to be available to plans and business associates for the asking, which would represent a welcome improvement to plan sponsors seeking greater insight about their operational data.

Finally, the FAQs state that if the plan is aware of a prohibited gag clause, and has been unable to remove it, it must still provide the attestation. In doing so, it should attest that it is non-compliant and in the text box labelled “Additional Information” provide information on the prohibited gag clause. Such information could include the name of provider/network entity that has the prohibited gag clause, conduct by the entity that shows it believes it has a gag clause, any information on requests to remove the gag clause, and any other steps taken to comply. 

This self-reporting, the FAQs say, would be considered in any enforcement actions. This is potentially significant as it could give the agencies a “hit list” of non-compliant provider/network entities that they could seek to pursue.

No Surprises Act FAQs

The No Surprises Act-related FAQs focus on the recent Fifth Circuit decision in the ongoing litigation over these rules. They reiterate and extend the ability of plans to take good faith, reasonable interpretations of the qualifying payment amount (QPA) rules that apply for purposes the rules (for more background, see this article). The FAQs also note that the disclosure rules that require plans and issuers to disclose information regarding the QPA to out-of-network providers are unaffected by the litigation, so such disclosures should continue. There are also additional clarifications around the negotiation process.

As most plans rely on their insurance carriers or TPAs to negotiate out-of-network payments, this clarification should have little direct effect on how sponsors administer their plans - but could increase their out-of-network reimbursement rates. As a result, this ongoing litigation is something sponsors should carefully track until a dispute is finally resolved.

Takeaways

For employers, the gag clause clarifications offer potent new ammunition to press their TPAs and other provider/network entities to remove any remaining gag clauses from their contracts. They should also (hopefully) help plan sponsors obtain additional information from their provider/network entities as needed, which was always a foundational cornerstone of the transparency doctrine.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

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