The Gobeille v. Liberty Mutual Insurance Co. decision dealt a blow to state APCDs by denying state all payer claims databases (APCD) the ability to require data submission from self-funded group health plans. Nationally about 63 percent of all workers with employer-based health insurance are in self-funded plans and that number is growing. The loss of this large data set limits APCDs’ capacity to provide robust, all payer data on health care cost and quality. However, the Supreme Court’s decision, particularly Justice Breyer’s concurrence, suggested that the Department of Labor (DOL) may fix the loss of data to state APCDs by imposing a federal requirement that ERISA plans submit health care claims data.
On July 21 the DOL issued a Notice of Proposed Rulemaking requesting public comments on its proposed reporting requirements for group health plans, called Schedule J, and sought specific comments in light of the Gobeille decision. The deadline to submit comments has been extended to December, 2016.
NASHP convened a workgroup shortly after the Gobeille decision to examine strategies to secure self funded data while complying with the Court’s decision. In collaboration with the APCD Council and NAHDO, we have responded to DOL’s proposed rules.
These comments are the result of months of intensive efforts and review by all state APCDs to develop a proposal that will restore the data lost as a result of Gobeille within the legal framework of DOL’s current rulemaking.
In light of Gobeille, the DOL cannot simply grant states the ability to collect state-specific data. But the DOL does have broad responsibility for data collection from employee health plans. Our comments make the case that APCDs can assist the DOL meet its responsibility to oversee cost and quality in health plans and to provide a pathway, using Schedule J as a vehicle, to begin data collection as soon as the rule is finalized, not in 2019 when the rule proposes to operationalize Schedule J.
The NASHP workgroup created two subcommittees. One subcommittee, led by NASHP,worked to develop the legal foundation and proposal for DOL action pursuant to its rulemaking on Schedule J. That group identified the statutory provisions of ERISA and the Public Health Service Act that provide the DOL with the necessary authority to act and developed the policy argument describing how the DOL will benefit from working with state APCDs to collect and analyze health care claims data as well as the importance of supporting state APCDs’ work and access to data from self-funded plans.
But we recognized that, no matter how solid our proposal, the underlying concern of the Court about burden on reporting entities also had to be addressed head on. The second subcommittee, led by the APCD Council, worked to standardize reporting requirements . The Court found that reporting to multiple different states with different requirements posed a burden on reporting entities. The group addressed that burden by establishing a common data layout for all APCDs – a major accomplishment that will reduce that burden.
As a result of these efforts , NASHP, in collaboration with the APCD Council and NAHDO, submitted comments and a proposal that incorporate the following key elements:
- Adoption of a standardized set of health care claims data, the Common Data Layout. The uniformity of the Common Data Layout is key to minimize burden to ERISA plans and adhere to ERISA’s goals of uniformity, consistent with Gobeille. Several months of intensive efforts were dedicated to the development of consensus among states, carriers, and data experts to adopt the Common Data Layout.
- Any DOL requirement for plans to submit health care claims data must be tied to its proposed Schedule J. New substantive data reporting requirements from DOL must go through rulemaking procedures. Time is of the essence for State APCDs, so any proposal for collecting health care claims data must be integrated into this current rulemaking vehicle. Although Schedule J as proposed is inadequate to address the loss of data from state APCDs or DOL’s stated goals of improving transparency and oversight over group health plans, we propose a way for DOL to fill the gap to serve its own reporting needs and restore APCDs’ access to self-funded data.
- We propose that DOL implement a pilot program to collect health care claims data in cooperation with State APCDs. The federal-state pilot approach is attractive because it allows DOL to leverage existing state APCD data collection and analytic capacity, reduces administrative burden and duplication, and leaves APCD investments intact. States would be granted authority to collect a uniform dataset from self-funded plans on a monthly or quarterly basis that would be aggregated into an annual report to the DOL to provide more robust data within Schedule J.
NASHP will continue its work with the APCD Council and NAHDO to monitor the rulemaking process and continue efforts to assure APCDs have the full capacity to collect all the critical data needed to address health care cost and quality.