Short answer: Generally no. Federal law bars a group health plan from agreeing to contract terms with a TPA, network or provider that restrict its access to de-identified claims data or provider-specific cost and quality information, so a contract that leaves the plan’s data access to the vendor’s discretion is a prohibited gag clause.
Under ERISA section 724, added by the Consolidated Appropriations Act, 2021, a group health plan may not enter into an agreement with a provider, network, TPA or other service provider offering network access that directly or indirectly restricts the plan from getting provider-specific cost or quality information, electronically accessing de-identified claims and encounter data for each participant on request (including allowed amounts, provider information and service codes), or sharing that data with a business associate, all consistent with HIPAA privacy rules.
The Departments’ FAQs give examples: a TPA contract that calls rates proprietary and forbids disclosing them to participants is a gag clause, and so is a clause making the plan sponsor’s access to cost and quality data subject to the TPA’s discretion. Vendors may still place reasonable restrictions on public disclosure.
Put data access, format and timing in writing before signing, including access after the contract ends. Concerns about an ERISA plan can be raised with EBSA at 1-866-444-3272.