America's Benefit Specialist December 2023

DISSECTING THE CAA GAG CLAUSE PROHIBITION

By David Ostrowsky The Phia Group dostrowsky@phiagroup.com

While the primary purpose of the Consolidated Appropri ations Act of 2021 may have been to provide fiscal relief to tens of millions of Americans in the depths of the pandemic, the CAA has also proven to be a landmark piece of health care legislation by virtue of initiating sweeping reforms for employer-sponsored group health plans, arguably the most influential ones since the Affordable Care Act was enacted in March 2010. One such reform ensures there is heightened price trans parency for healthcare consumers, a development that is encapsulated in the legislation’s “gag clause” prohibition. This provision of the CAA bars health plans or health insur ance issuers from entering into contracts with a healthcare provider, network or third-party administrator providing access to a network of providers that restrict a plan from releasing data and information for public consumption. For example, if there is a contract between a TPA and a plan in which the plan sponsor’s access to provider-specific cost and quality of care information is solely at the discretion of the TPA, such a contractual provision would be deemed a prohibited gag clause. Meanwhile, the CAA-issued guidance also clearly stipulates that even any provision indirectly

limiting access to data/information or the ability to disclose information is forbidden. Further, per this CAA provision, plans are required to submit an annual attestation that they have not engaged in any such prohibited contractual arrangements. The first attestation is due December 31, 2023, which covers the peri od starting December 27, 2020 (or the effective date of the applicable group health plan or health insurance coverage, if later) through the date of attestation. Subsequent attesta tions must be submitted by December 31 of each year and cover the period since the last one was delivered. (It should be noted that while this attestation, which can be done by the TPA on behalf of the self-insured plan so long as there is a written agreement between the plan and the service provider in place, is applicable to grandfathered plans, it does not pertain to HRAs, stand-alone retiree health plans and issuers of only excepted benefits plans or short term limited-duration insurance.) The underlying concept of this provision is that removing gag clauses on price and quality metrics, effectively ensur ing that electronic claims data and provider-specific cost or quality of care information as well as claim-related financial obligations included in the provider contract is accessible

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