The Consolidated Appropriations Act (CAA), 2021, includes a prohibition on gag clauses. As such, it prohibits clauses that prevent cost and quality data disclosures in ANY agreement between an issuer or group health plan with a health care provider, network or association of providers, and a third-party administrator (TPA), or other service provider offering access to a network of providers.
So, for example, a TPA that enters into an agreement(s) with a health care provider(s), network(s), or association of providers on the issuer or plan’s behalf would be included.
The CAA does not expressly define the agreements based on the type of benefits the plan or policy covers. So technically, every single agreement that a plan has with a provider, or which their TPA has with the plan and providers, is subject to the prohibition.
Health insurance carriers, medical TPAs, PBMS, behavioral health vendors, and direct care arrangements, are just the most common examples of entities with which a plan is likely to contract — directly or indirectly — to access a provider/provider network.
There could also be agreements with laboratories, radiation providers, telehealth companies, claim repricers (i.e., MultiPlan), or entities that provide plan services as well as access to their networks such as some bolt-on condition management programs. Employers should include dental and vision care networks only if they are part of the health plan.
What about a life or stop loss insurer?
If a plan enters into an agreement with a life insurer for access to provider agreements, the CAA will apply. With regard to stop loss, policies are unlikely to contain pricing and data quality gag clauses.
Stop loss policies are also often issued to the employer, rather than the group health plan. And the issuer might not be a health insurance issuer. As such, the plan and issuer arguably do not have to attest to their compliance as they wouldn’t be subject to the CAA.