Sec. 7. Increasing group health plan access to health data
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Paragraph
(2)of section 408(b) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1108(b) ) is amended by adding at the end the following new subparagraphs: No contract or arrangement for services, and no extension or renewal of such contract or arrangement, between a group health plan (as that term is defined in section 733(a) of this title) and party in interest, including a health care provider (which for purposes of this subparagraph, includes a health care facility), network or association of providers, service provider offering access to a network of providers, third-party administrator, or pharmacy benefit manager (collectively referred to as Covered Service Providers ), is reasonable within the meaning of this paragraph unless such contract or arrangement— allows the responsible plan fiduciary (as that term is defined in subparagraph (B)(ii)(I)(ee)) access to all claims and encounter information or data, and any documentation supporting claim payments, including, but not limited to, medical records and policy documents, or information or data described in section 724(a)(1)(B) to— enable such entity to comply with the terms of the plan and any applicable law; and determine the accuracy or reasonableness of payment; and does not— unreasonably limit or delay access, as determined by the Secretary but in any event not longer than 15 days, to such information or data; limit the volume of claims and encounter information or data that the group health plan, the plan sponsor, the plan administrator, or a business associate of such plan may access during an audit or pursuant to any request for such information or data; limit the disclosure of pricing terms for value-based payment arrangements or capitated payment arrangements, including— payment calculations and formulas; quality measures; contract terms; payment amounts; measurement periods for all incentives; and other payment methodologies used by an entity, including a health care provider (including a health care facility), network or association of providers, service provider offering access to a network of providers, third-party administrator, or pharmacy benefit manager; limit the disclosure of overpayments and overpayment recovery terms; limit the right of the group health plan, the plan sponsor, or the plan administrator of such plan to select an auditor or define audit scope or frequency; otherwise limit or unduly delay the group health plan, the plan sponsor, the plan administrator, or a business associate of such plan from accessing claims and encounter information or data in a daily batch; limit the disclosure of fees charged to the group health plan related to plan administration and claims processing, including renegotiation fees, access fees, repricing fees, or enhanced review fees; limit the right of the group health plan, the plan sponsor, or the plan administrator to request action on any suspect claim payments; or limit public disclosure of de-identified or aggregate information. Covered Service Providers shall provide information or data under this paragraph in a manner consistent with the privacy and security regulations promulgated under the Health Insurance Portability and Accountability Act (referred to in this subparagraph as HIPAA ). A group health plan that receives a disclosure from a party in interest pursuant to subparagraph
(B)or
(C)shall comply with the privacy and security regulations promulgated under HIPAA. Nothing in this subparagraph shall be construed to modify the requirements for the creation, receipt, maintenance, or transmission of protected health information under the HIPAA privacy regulation (as defined in section 1180(b)(3) of the Social Security Act) as they apply directly or indirectly to an entity pursuant to this paragraph. This subparagraph shall not be read to abridge or limit the disclosure requirements under this paragraph or to impose additional privacy or security requirements on Covered Service Providers or plan sponsors. A group health plan receiving information or data under this paragraph may disclose such information only in a manner that is consistent with the Health Insurance Portability and Accountability Act (HIPAA) and the privacy and security regulations promulgated thereunder, regardless of their direct or indirect applicability to the plan or any entities that could be or are business associates. Information made available under this section shall conform to the following standards: All claims from a healthcare provider shall be made to the group health plan in accordance with transaction standards adopted by regulation under HIPAA, as follows: Institutional, professional, and dental claims shall be in ASC X12N 837 format or any subsequent standard. Pharmacy claims shall be in the National Council for Prescription Drug Programs (NCPDP) format or any subsequent standard. The files shall be unmodified copies of the files sent from the provider. In the event that paper claims are sent by the provider, they shall be converted to the appropriate standard electronic format. Files shall be accessible to the plan at no cost to the group health plan. All claim payment (or EFT, electronic funds transfer) and electronic remittance advice
(ERA)notices sent by a Covered Service Provider shall be made available to the group health plan as ASC X12N 835 files in accordance with standards adopted by regulation under HIPAA. The files shall be unmodified copies of the files sent by the Covered Service Provider to the healthcare provider. Files shall be accessible at no cost to the group health plan. The contractual terms containing calculation formulae, pricing methodologies, and other information used to determine the dollar value of reimbursement. All non-claim costs shall be itemized and made available to the group health plan in real time through a web-based portal, through an API, and through a downloadable CSV file. The Secretary shall implement subparagraphs
(C)through
(F)through notice and comment rulemaking in accordance with section 553 of title 5, United States Code. . Subsection
(c)of section 502 of such Act ( 29 U.S.C. 1132 ) is amended by adding at the end the following new paragraph: In the case of an agreement between a group health plan (as defined in section 733(a)), the plan sponsor of such plan (as defined in section 3(16)(B)), or the plan administrator of such plan (as defined in section 3(16)(A)) and a health care provider (which, for purposes of this paragraph, includes a health care facility), network or association of providers, service provider offering access to a network or association of providers, third-party administrator, or pharmacy benefit manager, that violates the provisions of section 724, the Secretary may assess a civil penalty against such provider, network or association, service provider offering access to a network or association of providers, third-party administrator, pharmacy benefit manager, or other service provider in the amount of $10,000 for each day during which such violation continues. Such penalty shall be in addition to other penalties as may be prescribed by law. . Section 410 of such Act ( 29 U.S.C. 1110 ) is amended by adding at the end the following: Any provision in an agreement or instrument shall be void as against public policy if such provision— unduly delays or limits a group health plan (as defined in section 733(a)), the plan sponsor of such plan (as defined in section 3(16)(B)), or the plan administrator of such plan (as defined in section 3(16)(A)) from accessing the claims and encounter information or data described in section 724(a)(1)(B); or violates the requirements of section 408(b)(2)(C). . Clause
(i)of section 408(b)(2)(B) of such Act is amended by striking this clause and inserting this paragraph . Section 724(a)(3) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1185m(a)(3) ) is amended to read as follows: Subject to subparagraph (C), a group health plan or health insurance issuer offering group health insurance coverage shall annually submit to the Secretary an attestation that such plan or issuer of such coverage is in compliance with the requirements of this subsection. Such attestation shall also include a statement verifying that— the information or data described under subparagraphs
(A)and
(B)of paragraph
(1)is available upon request and provided to the group health plan, the plan sponsor, the plan administrator, or the business associate of such plan, or the issuer in a timely manner; and there are no terms in the agreement under such paragraph
(1)that directly or indirectly restrict or unduly delay a group health plan, the plan sponsor, the plan administrator, a business associate of such plan, or the issuer from auditing, reviewing, or otherwise accessing such information. Subject to clause (ii), a group health plan or issuer offering group health insurance coverage may not enter into an agreement with a third-party administrator or other service provider to submit the attestation required under subparagraph (A). In the case of a group health plan or issuer offering group health insurance coverage that is unable to obtain the information or data needed to submit the attestation required under subparagraph (A), such plan or issuer may submit a written statement in lieu of such attestation that includes— an explanation of why such plan or issuer was unsuccessful in obtaining such information or data, including whether such plan, the plan sponsor, or the plan administrator or issuer was limited or prevented from auditing, reviewing, or otherwise accessing such information or data; a description of the efforts made by the group health plan, the plan sponsor, or the plan administrator to remove any gag clause provisions from the agreement under paragraph (1); and a description of any response by the third-party administrator or other service provider with respect to efforts to comply with the attestation requirement under subparagraph (A), including the name of the third-party administrator or other service provider. . The amendments made by subsections
(a)and
(b)shall apply with respect to a plan beginning with the first plan year that begins on or after the date that is 1 year after the date of enactment of this Act.
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Sec. 7
Increasing group health plan access to health data
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