“Who Me? I Didn’t Approve The Agreement! Our Consultant Did!”
Mary is in hot water. She denies she signed the Blue Cross ASO Agreement. Meanwhile her insurance consultant is at home reading his E&O policy…………..
Plan sponsors should be aware that Gag Clauses by statue prohibits any restriction on accessing data. “Any limitation on the scope, scale, or frequency of electronic access to de-identified claims and encounter information or data is considered a [prohibited] restriction. Electronic access for plans and business associates is required to be available on request.”
In the spirit of knowing the answer before the question is asked, is the following provision in Mary’s Blue Cross Blue Shield ASO Agreement a gag claus violation?
VII. AUDIT AND CORRECTION OF AUDIT ERRORS
A. During the term of this Agreement and within one hundred eighty (180) days after its termination, the Employer or an authorized agent of the Employer (as mutually agreed to by the Claim Administrator and the Employer) may, upon at least ninety (90) days prior written notice to the Claim Administrator, conduct reasonable audits of the Claim Administrator’s records in regard to Claim Payments made under the Agreement. Audits performed on a contingency fee basis will not be allowed or supported by the Claim Administrator. All such audits shall be subject to the Claim Administrator’s external audit policy and procedures, a copy of which shall be furnished to the Employer upon request to the Claim Administrator.
B. The Claim Administrator shall be responsible only for the correction of errors identified in specific Claim Payments subject to the terms and conditions of the Agreement and shall not be responsible for errors calculated to exist in a population of Claim Payments on the basis of a sample drawn from that population. Further, the Claim Administrator has the right to implement reasonable administrative practices in the administration of this Agreement. Minor deviations in Claim Payments from the provisions of the Agreement as a
In addition the law governing Gag Clause prohibition stipulates that gag clauses placing limits on access to data is impermissible:
- For a “statistically significant” number of de-identified claims
- For a process such as an audit
- Based on the frequency of claims reviews
- Based on the number and types of de-identified claims available to access
- Based on the elements of a de-identified claim that a plan or issuer may access.
