Federal Register: May 21, 1998 (Volume 63, Number 98)
Proposed Rules
Page 27902-27903

DOCID:fr21my98-39

OFFICE OF PERSONNEL MANAGEMENT

48 CFR Part 1609

RIN 3206-AI27

Prohibition of ``Gag Clauses'' in the Federal Employees Health
Benefits Program

AGENCY: Office of Personnel Management.

ACTION: Notice of proposed rule making.

SUMMARY: The Office of Personnel Management (OPM) is proposing to amend
the regulations to prohibit health benefit carriers participating in
the Federal Employees Health Benefits (FEHB) Program from entering into
contractual provisions with health care providers or health care
workers that would include a provision for incentive payments as an
inducement to reduce or limit communication with, or the delivery of
health care services to, FEHB enrollees. The rule is intended to ensure
providers' and health care workers' ability to communicate with, and
advise patients of, any medically necessary treatment options.

DATES: Comments must be received on or before July 20, 1998.

ADDRESSES: Comments should be directed to Abby L. Block, Chief,
Insurance Policy and Information Division, OPM, Room 3425, 1900 E
Street, NW., Washington, DC 20415-0001.

FOR FURTHER INFORMATION CONTACT: Michael W. Kaszynski, (202) 606-0004.

SUPPLEMENTARY INFORMATION: You may submit comments and data by sending
electronic mail (E-mail) to: MWKASZYN@OPM.Gov.

On February 20, 1998, the President signed an Executive Memorandum
directing the Office of Personnel Management (OPM) to take the
necessary steps to bring the FEHB Program into contractual compliance
with the Consumer (Patient) Bill of Rights and Responsibilities by no
later than year end 1999. The Memorandum specifically directed OPM to
propose regulations within 90 days to prohibit practices that restrict
physician-patient communications about medically necessary treatment
options. This action will prohibit FEHB participating carriers

[[Page 27903]]

from placing incentives in contracts with health care providers or
health care workers that would limit providers' or health care workers'
ability to discuss medically necessary treatment options with Federal
enrollees. We are aware that a proposal to enact a ``gag clause''
regulation raises three broad areas of concern regarding: (1) potential
impairment of a health plan's ability to review utilization against
appropriate treatment protocols, (2) potential conflict with providers'
(including carriers') ethical or moral beliefs, and (3) impact on
providers' or workers' ability to discuss non-covered or high cost
treatment options. This regulation is not intended to limit a health
plan's ability to perform utilization review nor is it intended to
cause providers or health care workers to discuss treatment options
that they would not ordinarily discuss in their normal course of
practice because such options are against their professional judgement
and/or ethical, moral or religious beliefs. The regulation will ensure
that providers or health care workers have the ability to communicate
fully and openly with patients regarding medically necessary treatment
options regardless of cost or whether the benefits are covered by their
health plan. Simply stated, the amended regulation is intended to
remove any contractual impediment to a candid and open physician-
patient relationship.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because the regulation
will only affect health insurance carriers under the Federal Employees
Health Benefits Program.

Executive Order 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget
in accordance with Executive Order 12866.

List of Subjects in 48 CFR Part 1609

    Administrative practice and procedure, Government employees, Health
facilities, Health insurance, Health professionals, Hostages, Iraq,
Kuwait, Lebanon, Reporting and record keeping requirements, Retirement.

Office of Personnel Management.
Janice R. Lachance,
Director.

    For the reasons set forth in the preamble OPM proposes to amend 48
CFR Part 1609 as follows:

Subpart 1609.70--Minimum Standards for Health Benefit Carriers

    1. The authority citation for 48 CFR Part 1609 continues to read as
follows:

    Authority: 5 U.S.C. 8913; 40 U.S.C. 486(c); 48 CFR 1.301.

    2. In Sec. 1609.7001 new paragraph (c)(7) is added to read as
follows:

Sec. 1609.7001  Minimum Standards for Health Benefits Carriers

* * * * *
    (c) * * *
    (7) Entering into contracts with providers or health care workers
that include incentive plans that directly or indirectly create an
inducement to limit communication of, or reduce, medically necessary
services to any individual covered under the FEHB Program.

[FR Doc. 98-13782 Filed 5-19-98; 2:20 pm]
BILLING CODE 6325-01-P