On December 27, 2020, President Trump signed Congress’ most recent stimulus bill into law, covering $900 billion in economic relief for businesses and individuals impacted by the COVID-19 pandemic. The law addresses new substantive requirements for health plans and health care providers, including new restrictions on non-participating provider billing (so-called “surprise medical bills”), rules related to the transparency of health care costs and quality of care information, and other health care consumer protections. We briefly discussed these provisions in the firm’s overview alert on the new law.

This alert addresses the price and quality transparency provisions in more depth.

The transparency provisions of the stimulus bill amend the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code, and the Public Health Service Act to prohibit so-called gag clauses in agreements between payors and providers that aim to prevent the disclosure of certain information.

In particular, group health plans and health insurers may not enter into agreements with health care providers, third-party administrators, or managers of provider networks that would restrict the plan or the insurer’s ability to access and share cost or quality of care information in certain circumstances. Such agreements must not restrict a group health plan or health insurer from:

• providing provider-specific cost or quality of care information to referring providers, the plan sponsor, enrollees, or those eligible to enroll in the plan or insurance;
• consistent with the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA), and the Americans with Disabilities Act (ADA), electronically accessing information about particular claims that is de-identified as to the individual receiving the care but that includes information about the provider, the service, the allowed amount, and other financial information about the claim; and
• consistent with HIPAA, GINA, and the ADA, sharing such claim information with a business associate under HIPAA.

Agreements may still include reasonable restrictions on the public disclosure of such information. Group health plans and insurers offering group or individual coverage must submit an annual attestation that they are in compliance with these transparency requirements. These rules will be effective in January 2022.

These rules are in addition to the transparency requirements set forth in regulations issued this fall by the federal Departments of Labor, Health and Human Services, and the Treasury establishing disclosure requirements for group health plans and health insurers related to participant cost-sharing, in-network negotiated rates, historical out-of-network allowed amounts, and drug pricing information.