State Law

South Carolina Code of Laws-Title 38-Chapter 71-Article 17. Patients’ Insurance and Benefits Protection Act

08/22/2023 South Carolina Section 38-71-1740

Responsibility for errors and omissions by parties to managed care participating provider agreements; limitations on network providers to discuss treatments, risks and legal obligations with an insured or member prohibited; permissible limitations

Anti-gag clause, Liability-insurer shifting to physician

See bold sections below:

(A) For purposes of any health insurance plan, health maintenance organization, or any other health benefits plan offered in this State under the jurisdiction of South Carolina law:

Liability-Insurer Shifting to Physician

(1) Each party to a managed care participating provider agreement is responsible for the legal consequences and costs of his own acts or omissions, or both, and is not responsible for the acts or omissions, or both, of the other party. A clause in a participating provider agreement to the contrary is unlawful in this State, as a matter of public policy, whether entered into before or after January 1, 1999.

Anti-gag Clause

(2) To the extent that a network plan requires an insured or a member to receive health benefits through a network of providers, the provisions of participating provider agreements may not limit the network provider’s:

(a) ability to discuss with an insured or a member, the treatment options available to the insured or member, risks associated with treatments, utilization management decisions, and recommended course of treatment;

(b) legal obligations to an insured or a member as specified under the provider’s professional license.

(B) Nothing in this section:

(1) prevents a network plan from prohibiting disclosure by network providers of trade secrets;

(2) subjects a network plan to liability for clinical decisions made solely by the network provider; and

(3) limits the ability of the network plan otherwise prudently to administer its provider contracts.