America's Benefit Specialist June 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. BUT, AS IS SO OFTEN THE CASE WITH COMPLICATED LEGISLATIVE INITIATIVES, THE AFOREMENTIONED CONCEPTUAL PREMISE CAN POTENTIALLY DIFFER FROM REALITY.

One such reform ensures there is heightened price trans parency for healthcare consumers, a development that is en capsulated in the legislation’s “gag clause” prohibition. This provision of the CAA bars health plans or health insurance issuers from entering into contracts with a healthcare pro vider, 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 pro hibited 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 informa tion 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 pe

6 ABS | benefitspecialistmagazine.com

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