[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4527 Reported in House (RH)]

<DOC>





                                                 Union Calendar No. 210
118th CONGRESS
  1st Session
                                H. R. 4527

                          [Report No. 118-260]

To amend the Employee Retirement Income Security Act of 1974 to ensure 
   plan fiduciaries may access de-identified information relating to 
                 health claims, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 11, 2023

    Mrs. Chavez-DeRemer (for herself, Mr. Takano, and Ms. Manning) 
 introduced the following bill; which was referred to the Committee on 
                      Education and the Workforce

                            November 1, 2023

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
 [For text of introduced bill, see copy of bill as introduced on July 
                               11, 2023]


_______________________________________________________________________

                                 A BILL


 
To amend the Employee Retirement Income Security Act of 1974 to ensure 
   plan fiduciaries may access de-identified information relating to 
                 health claims, and for other purposes.


 


    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Health Data Access, Transparency, 
and Affordability Act of 2023'' or the ``Health DATA Act of 2023''.

SEC. 2. PLAN FIDUCIARY ACCESS TO INFORMATION.

    (a) In General.--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 subparagraph:
            ``(C) No contract or arrangement for services between a 
        group health plan and any other entity, such as a health care 
        provider, network or association of providers, third-party 
        administrator, or pharmacy benefit manager, is reasonable 
        within the meaning of this paragraph unless such contract or 
        agreement--
                    ``(i) allows the responsible plan fiduciary to 
                audit all de-identified claims and encounter 
                information or data described in section 724(a)(1)(B) 
                to--
                            ``(I) ensure that such entity complies with 
                        the terms of the plan and any applicable law; 
                        and
                            ``(II) determine the reasonableness of 
                        compensation paid by the plan; and
                    ``(ii) does not--
                            ``(I) unreasonably limit the number of 
                        audits permitted during a given period of time;
                            ``(II) limit the number of de-identified 
                        claims and encounter information or data that 
                        the responsible plan fiduciary may access 
                        during an audit;
                            ``(III) limit the disclosure of pricing 
                        terms for value based payment arrangements, 
                        including--
                                    ``(aa) payment calculations and 
                                formulas;
                                    ``(bb) quality measures;
                                    ``(cc) contract terms;
                                    ``(dd) payment amounts;
                                    ``(ee) measurement periods for all 
                                incentives; and
                                    ``(ff) other payment methodologies 
                                furnished by a health care provider, 
                                network or association of providers, 
                                third-party administrator, or pharmacy 
                                benefit manager;
                            ``(IV) limit the disclosure of overpayments 
                        and overpayment recovery terms;
                            ``(V) limit the right of the responsible 
                        plan fiduciary to select an auditor;
                            ``(VI) otherwise limit or unduly delay by 
                        greater than 60 days the responsible plan 
                        fiduciary from auditing such information or 
                        data; or
                            ``(VII) charge a fee beyond the reasonable 
                        direct costs to administer the operation of 
                        conducting such audits.''.
    (b) Civil Enforcement.--
            (1) In general.--Subsection (c) of section 502 of such Act 
        (29 U.S.C. 1132) is amended by adding at the end the following 
        new paragraph:
    ``(13) In the case of an agreement between a group health plan and 
a health care provider, network or association of providers, third-
party administrator, pharmacy benefit manager, or other service 
provider that violates the provisions of section 724, the Secretary may 
assess a civil penalty against such provider, network or association, 
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.''.
            (2) Conforming amendment.--Paragraph (6) of section 502(a) 
        of such Act is amended by striking ``or (9)'' and inserting 
        ``(9), or (13)''; and
    (c) Existing Provisions Void.--Section 410 of such Act is amended 
by adding at the end the following new subsection:
    ``(c) Any provision in an agreement or instrument shall be void as 
against public policy if such provision--
            ``(1) unduly delays or limits a plan fiduciary from 
        accessing the de-identified claims and encounter information or 
        data described in section 724(a)(1)(B); or
            ``(2) violates the requirements of section 408(b)(2)(C).''.
    (d) Technical Amendment.--Clause (i) of section 408(b)(2)(B) of 
such Act is amended by striking ``this clause'' and inserting ``this 
paragraph''.

SEC. 3. UPDATED ATTESTATION FOR PRICE AND QUALITY INFORMATION.

    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:
            ``(3) Attestation.--
                    ``(A) In general.--Subject to subparagraph (C), the 
                fiduciary of a group health plan or 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--
                            ``(i) the information or data described 
                        under subparagraphs (A) and (B) of paragraph 
                        (1) is available upon request and provided to 
                        the plan fiduciary, the plan administrator, or 
                        the issuer in a timely manner; and
                            ``(ii) there are no terms in the agreement 
                        under such paragraph (1) that directly or 
                        indirectly restrict or unduly delay a plan 
                        fiduciary, the plan administrator, or the 
                        issuer from auditing, reviewing, or otherwise 
                        accessing such information.
                    ``(B) Limitation on submission.--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).
                    ``(C) Exception.--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--
                            ``(i) an explanation of why such plan or 
                        issuer was unsuccessful in obtaining such 
                        information or data, including whether such 
                        plan or issuer was limited or prevented from 
                        auditing, reviewing, or otherwise accessing 
                        such information or data;
                            ``(ii) a description of the efforts made by 
                        the plan fiduciary to remove any gag clause 
                        provisions from the agreement under paragraph 
                        (1); and
                            ``(iii) 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).''.

SEC. 4. STUDY ON PLAN ASSETS.

    Not later than 1 year after the date of enactment of this Act, the 
Secretary of Labor shall submit to the Committee on Education and the 
Workforce of the House of Representatives a report on the status of de-
identified claims and encounter information or data described in 
section 724(a)(1)(B) of the Employee Retirement Income Security Act of 
1974 (29 U.S.C. 1185m), including information on the following:
            (1) Circumstances under current law where such information 
        or data could be deemed a group health plan asset (as defined 
        under section 3(42) of such Act).
            (2) Whether restrictions on the ability of a plan fiduciary 
        to access such information or data violates a requirement of 
        current law.
            (3) The existing regulatory authority of the Secretary to 
        clarify whether such information or data belongs to a group 
        health plan, rather than a service provider.
            (4) Legislative actions that may be taken to establish that 
        such information or data related to a plan belongs to a group 
        health plan and is handled in the best interests of plan 
        participants and beneficiaries.
                                                 Union Calendar No. 210

118th CONGRESS

  1st Session

                               H. R. 4527

                          [Report No. 118-260]

_______________________________________________________________________

                                 A BILL

To amend the Employee Retirement Income Security Act of 1974 to ensure 
   plan fiduciaries may access de-identified information relating to 
                 health claims, and for other purposes.

_______________________________________________________________________

                            November 1, 2023

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed