Some group health plans will use or maintain individually identifiable health information, particularly group health plans that are self-insured. Also, some plan sponsors that perform administrative functions on behalf of their group health plans may need protected health information. The final rule permits a group health plan, or a health insurance issuer or HMO that provides benefits on behalf of the group health plan, to disclose protected health information to a plan sponsor who performs administrative functions on its behalf for certain purposes and if certain requirements are met. The plan documents must be amended to: describe the permitted uses and disclosures of protected health information by the plan sponsor; specify that disclosure is permitted only upon receipt of a certification by the plan sponsor that the plan documents have been amended and the plan sponsor agrees to certain restrictions on the use of protected health information; and provide for adequate firewalls to assure unauthorized personnel do not have access to individually identifiable health information.
Some plan sponsors may need information, not to administer the group health plan, but to amend, modify, or terminate the health plan. ERISA case law describes such activities as settlor functions. For example a plan sponsor may want to change its contract from a preferred provider organization to a health maintenance organization (HMO). In order to obtain premium information, the health plan sponsor may need to provide the HMO with aggregate claims information. Under the rule, the health plan sponsor can obtain summary information with certain identifiers removed, in order to provide it to the HMO and receive a premium rate.
The Department assumes that most health plan sponsors who are small employers (those with 50 or fewer employees) will elect not to receive individually identifiable health information because they will have little, if any, need for such data. Any needs that sponsors of small group health plans may have for information can be accomplished by receiving the information in summary form from their health insurance issuers.