The Employee Retirement Income Security Act (ERISA), the Internal Revenue Code (IRC), and the Public Health Service Act (PHS) all contain specific provisions that impact group health plan contracts. In short, these provisions, interpreted in layman’s terms, place prohibitions on group health plans and issuers of such plans from enforcing what are colloquially known as “gag clauses” in their agreements with healthcare providers. This information directly impacts those who either work for or represent these health plans, and will become crucial towards the end of 2023.
The statutes in question can be found within the Internal Revenue Code (26 U.S.C. § 9824), ERISA (29 U.S.C. § 1185m), and the Public Health Service Act (42 U.S.C. § 300gg-119(a)(1)). These provisions must be reviewed and thoroughly understood by the vested parties. Said parties must ensure that the healthcare providers they engage with are not contractually prohibited from disclosing certain information about their patient treatment protocols, fees, and other potentially pertinent information.
A common practice within the healthcare industry, these gag clauses prohibit providers and health professionals from disclosing or discussing certain information. The intent of such clauses is preservation and control of the information, which could range from patient treatment plans to the fees charged for particular services. There is an argument made that these clauses can potentially suppress valuable information, thus creating an environment of non-transparency.
However, with these statutes in place, the landscape is poised to change. Parties to a group health plan will need to pay close attention and potentially renegotiate the terms of their contracts with care providers within the scope of these regulations. These revisions could thereby have significant implications for the industry as a whole.
For more detailed information, readers might find it helpful to review the analysis provided by legal expert Stevens & Lee on this issue, available here.