GAG Clause Impact on Utilization of Data

Many advisors have asked why, with the new GAG clause regulations, they are not allowed to share medical and/or Rx data from Vital Incite for RFP’s and other purposes. Gag Clause regulations prevent “agreements” between the health plan and TPA/PBM (collectively referred to herein as “TPAs”) that restrict electronic access to de-identified claims and encounter information. Vital Incite has spoken to a few TPAs regarding this topic and they generally acknowledge their obligation to provide health plans (or their business associates “BA”) electronic access to de-identified claims and encounter information. However, they are unwilling to do so without first understanding the purpose of the health plan/BA’s use of the data. They require this level of vetting a) in order to determine the specific data that will satisfy the request and b) to make sure they protect any information they deem as proprietary.

The TPA's ability to restrict sharing of “proprietary information” may run afoul of the gag clause regulations, so any such resulting restriction should be addressed on a case-by-case basis. Now, Vital Incite as a BA of the health plan has been provided electronic, identified claims information for the specific purpose of Population Health Analytics and Reporting. As such, the data sharing agreements that the TPAs require Vital Incite to sign do not contemplate, nor do they permit Vital Incite to disclose that level of information for non-Pop Health purposes. So, merely because a) Vital Incite has been provided claims level data and b) the gag clause regulations exist, does not give Vital Incite the legal right to share claims level data with the Group/Advisor, even on a de-identified basis, for non-Population Health purposes.

Instead, the health plan or its BA needs to approach the TPA in order to seek electronic access to deidentified claims and encounter information in a manner that describes how the health plan/BA will use such data. The TPA should not decline these requests (pursuant to the gag clause regulations). In making these requests of a TPA, health plans can reference that Vital Incite already has the data (where that is the case) and seek permission from the TPA for Vital Incite to provide the needed data (on a deidentified basis) that would meet the group’s needs. If the TPA approves Vital Incite providing such information, then we would be free to do that.