EP342: How the Consolidated Appropriations Act (CAA) and ERISA Fiduciary Requirements Are an Anchor for Self-insured Employers to Navigate the Complexity of Healthcare, With Christin Deacon

This episode’s conversation is about the new Consolidated Appropriations Act (CAA), the fee disclosure part of it, as well as ERISA and the fiduciary responsibility that self-insured employers are responsible to comply with under the law. Don’t worry, the first thing my guest in this healthcare podcast, Christin Deacon, does is explain these terms, what they actually mean, and how they can be a tool actually in CEOs’ or CFOs’ toolboxes to get access to the employer’s own claims data, which is a linchpin here that we’ll talk about in a sec.

But suffice to say here that the ERISA fiduciary responsibility has a few provisions and, in general, self-insured employer health plan administrators kind of tend to off-load worrying about these provisions to their brokers and consultants. The problem with this is that brokers and consultants do not bear the ERISA fiduciary responsibility. They do not bear the responsibility of complying with the CAA either. The employer does.

You’d think that, given this, more self-insured employers would dig in hard to do their own due diligence to check whether or not their plan is compliant. But they don’t. I asked Parker Edman from Leavitt Partners why, and he said he thought that it’s likely a combination of the “old boy’s network” and a fear of the massive lift that switching up plan designs or even looking at this might entail.

But here’s another facet: There’s a contingent of plan advisors and carriers who have a very vested interest in self-insured employers not knowing what’s going on with their spend. And they actually even have a magic trick that they have developed to beat back inquiries.

In this magic trick, HIPAA is the abracadabra. Let me give you an example role-play.

Self-insured employer: I need my claims data.

Carrier: HIPAA.

Self-insured employer: Nooo, not the HIPAA. I stand down. Forget I mentioned it.

Here’s a pro tip: Actually read HIPAA. Pull it up on your computer. It’s easy to find. Spoiler alert: You know what you’ll discover? Ninety percent of it is a love note to the carriers themselves that govern the data they must possess and the structure of that data.

Ten percent of it is about the privacy of that data, and in that 10%, it specifies clearly that a self-insured employer is a covered entity and, therefore, falls under the umbrella of who can have access to claims data, especially if it is deidentified.

Of course, said employer has obligations as to how to treat that data, but yeah, just don’t be fooled by the HIPAA when it’s wielded like sorcery. The only reason that word has any power is because so many C-suites let it have power.

Also now, there’s some provisions in the Consolidated Appropriations Act, the CAA (which was passed in 2020), which really ups the ante here. My guest, Christin Deacon, explains all of this and more, including what’s up with the CAA, which is good because I could barely remember the name of it throughout the course of this interview.

Christin Deacon is a healthcare leader and public-sector entrepreneur. She is a former deputy attorney general, a “recovering attorney” as she calls herself. Earlier this year, 2021, she left her role running the state health and school health benefits plan for about 800,000 New Jersey public employees. Now, she’s just transitioned to the private sector where she serves as an executive VP at 4C Health Solutions.

You can learn more by emailing Christin at cdeacon@4chealthsolutions.com. You can also connect with her on LinkedIn. Listen to a new epsiode with Christin Deacon.

Christin Deacon is a healthcare thought leader who brings with her a wealth of experience in both public and private sector. Driven by her passion to change the healthcare system to truly benefit patients and payers, she focuses on bringing solutions and agency to self-funded and government-sponsored health plans.

04:10 What is ERISA, and what does it stand for?
05:40 What is a fiduciary obligation for an employer?
08:18 “We’re now at a point of spending 17.7% of our GDP on healthcare costs.”
09:39 “You absolutely have the keys to … controlling that spend.”
13:35 “You have to own your data.”
15:04 “If you don’t have your claims data, how do you know you’re paying reasonable fees?”
15:31 “If your carrier is telling you, ‘Oh, HIPAA … you can’t look at your data,’ you need to pull out that red BS card.”
16:25 How do employers navigate carriers refusing to share claims data?
21:36 “It has only as much teeth as the self-funded employer is … willing to learn about it and … willing to push back.”
22:22 “This is not aspirational; this is an absolute floor.”
24:11 “What does value mean?”
27:41 “Become familiar with HIPAA beyond just the privacy piece.”
29:30 “At the end of the day, it’s about people.”
29:38 “If you’re not paying reasonable fees, you’re using plan assets to enrich others.”
32:21 “The self-insured market … they hold the keys to unlocking value. And they’re holding them; they just have to use them.”
34:10 Marshall Allen’s new book.