2 minute read
The Departments of Health and Human Services, Labor and the Treasury (Departments) recently issued frequently asked questions (FAQs) on the implementation of several federal transparency requirements, including the prohibition on gag clauses.
Background
Federal law bans health plans and insurers from agreements with third-party administrators (TPAs) or service providers that include gag clauses, which limit sharing information on provider prices and quality. Annual compliance attestations are due by December 31st. Non-compliance may lead to enforcement actions. Fully insured plans are covered by their issuer's attestation, while self-insured plans must ensure their TPAs provide it, though the plan holds legal responsibility.
New Guidance
The FAQs provide some clarifying guidance for health plans regarding the gag clause prohibition and attestation requirement.
Downstream Agreements
Health plans must ensure their TPAs or service providers don't enter agreements that limit access to or sharing of essential data, as this violates gag clause rules. Contracts should explicitly prevent such restrictions.
De-identified Claims Data
Health plans must not agree with TPAs or service providers to restrict sharing de-identified claims data with business associates, unless the TPA or provider allows it.
Annual Attestation
Health plans must submit the annual gag clause attestation, even if they know of any violations. They should identify noncompliant provisions in the "Additional Information" section of the online system. Such additional information should include:- Any prohibited gag clauses that a service provider has refused to remove;
- The name of the TPA or service provider with which the plan has the agreement containing the prohibited gag clause;
- Conduct by the service provider that shows the service provider interprets the agreement to contain a prohibited gag clause;
- Information on the plan’s requests that the prohibited gag clause be removed from such agreement; and
- Any other steps the plan has taken to come into compliance with the provision.
National Insurance Services is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Readers are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the readers’ business activities.
