America's Benefit Specialist June 2023

THE CAA GAG CLAUSE PROHIBITION

riod 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 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 initia tives, 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 untold 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 consumption. That said, considerable roadblocks still exist for full price transparency to become a staple of the American healthcare system. ULTIMATELY, WITH THE CAA GAG CLAUSE PROVISION STILL BEING SO NEW, THERE ARE SOME NETWORKS AND TPAS THAT HAVE BEEN ABLE TO EXPOSE LOOPHOLES.

David Ostrowsky serves as a content special ist 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 , published by McFarland & Company in 2020.

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