Public Service Announcement: Gag Clause Attestation Exercise
By Doug Aldeen, ERISA Health Attorney
A January 2022 BCBS of Texas ASO Agreement recently surfaced on the “internet.” Boy, I just realized that I sound like my father who knew how to keep a proper box score but I digress. A few thoughts:
A) See highlighted section 3.3 on page 6 entitled “Providing Claims Data to Employer’s Vendor”;
B) Claims data is a plan asset. Period. The very foundation of insurance is gauging risk. Without all of a plan’s claims data, there is zero ability to gauge risk and the financial integrity of the plan is in substantial peril;
C) Under this ASO Agreement, access to a plan sponsor’s claims data requires the execution of a “Data Exchange Agreement” between BCBS of Texas and plan sponsor’s claims integrity vendor (we have to audit you because you sure as hell ain’t.) BCBS has the sole discretion to deny this request. What does this Claims Data Exchange Agreement provide? Does it limit the plan sponsor’s ability to obtain all claims data or to sue BCBS for mismanagement? Does it provide a cap on what the plan sponsor can recover or God forbid, a complete release for some unknown event in the future (think: turd in the closet) that only BCBS knows is sitting there fermenting with the lights out waiting to be discovered …?
D) Can BCBS of Texas circumnavigate the CAA by claiming this information is confidential and proprietary and/or limit the use of the information once it is received by the plan sponsor? More to the point: Can BCBS of Texas, as a condition of providing ALL of plan sponsor’s claims data, contractually force a plan sponsor to waive its rights to sue BCBS of Texas when this information should have been provided in the first place?
E) Personally, I think BCBS of Texas is on the losing side of this argument given the intent of the CAA;
Review your BCBS ASO Agreement AND any downstream arrangement between the TPA and the plan sponsor vendor. You might be in for a dog fight…