America's Benefit Specialist December 2023

DISSECTING THE CAA GAG CLAUSE PROHIBITION

to plan members, will spark enhanced transparency and is in the same vein as other wide-ranging price-transparency provisions of the CAA, including patient protections against surprise billing, prescription drug cost reporting and mental health parity comparative analysis disclosures. But, as is so often the case with complicated legislative initiatives, the aforementioned conceptual premise can potentially differ from reality. While on the surface it may appear that the gag clause prohibition is a surefire way to facilitate healthcare price transparency, there is still an un told number of owners of provider networks devising crafty workarounds, potentially leaving healthcare consumers deprived of critical claim-related financial data and provider background information. Consider the following hypothetical scenarios: • A self-funded plan cites the CAA in requesting access to its claims data. The TPA sends a file of claims data containing merely 22 of the 170+ fields needed to process and evalu ate claims. Subsequently, the plan obtains a file of virtually meaningless claims data and is left unable to discern what it is being charged for each claim. • A self-funded plan in a rural one-network region, also referencing the CAA, requests access to its claims data for review. Unfortunately, the network responds by saying it will not remove the gag clause and noting that the plan can terminate the contract if it is an issue. What is even more unfortunate is that not only does the plan receive no pricing data but, at the same time, it cannot terminate the contract for further use because it does not have access to any competing networks given its remote, sparsely popu lated location. • A union fund with well over $450 million in yearly health care spending asks to review its claims data. The TPA ref

erences its contract, which only allows for an audit of 200 claims per year, arguing this meets the CAA requirement for access to claims. Resultingly, the fund can only review .0004% of its members’ total claims, while being unable to identify whether it is paying claims appropriately and thus getting a square deal. Such situations are highly unfortunate given that the overwhelming majority of plan sponsors and TPAs across the nation are doing their due diligence to ensure compliance with the CAA gag clause prohibition when signing contracts and agreements with networks and other service providers. But, ultimately, with the CAA gag clause provision still being so new, there are some networks and TPAs that have been able to expose loopholes. In sum, the evolution of the gag clause prohibition is a promising development for Americans covered by employ er-sponsored health plans who have a vested interested in understanding the financials behind their patterns of con sumption. That said, considerable roadblocks still exist for full price transparency to become a staple of the American healthcare system.

David Ostrowsky serves as a content specialist for The Phia Group, a position in which he generates a wide range of written content for both internal and external functions. A graduate of Brandeis University, David was previously a content specialist for the recruiting company formerly known as WinterWyman. He is also a regular contribu

tor to the Atlanta Jewish Times and has authored multiple books, including his most recent, Pro Sports in 1993, pub lished by McFarland & Company in 2020.

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