Gag Clause Attestation Deadline Looming

What is the Gag Clause Attestation?

The Consolidated Appropriations Act of 2021 prohibits health plans from entering onto an agreement with plan service providers that includes a “gag clause”.  This is any provision in a contract that would directly or indirectly restrict the plan from:

• providing plan participants with provider-specific cost or quality of care information;
• electronically accessing de-identified claims or encounter information for participants; or
• sharing such information with a business associate.

In order to enforce the restrictions on gag clauses, plans are required to submit an annual attestation to CMS that they are in compliance with this requirement.  The first attestation is due on December 31, 2023, covering the period from December 27, 2020, through the date of attestation. Attestations for subsequent years are due on December 31 of each year.

Who Must Comply?

In general, all fully-insured and self-insured group health plans, including ERISA plans, non-Federal governmental plans and church plans must comply.  Grandfathered plans are not exempt.

However, attestation is not required for:

• plans that offer only excepted benefits (such as dental or vision only plans).
• account-based plans (such as health FSAs and HRAs).

How to Comply

Fully insured plans will satisfy their compliance obligation if their health insurer submits an attestation on behalf the plan.  Employers with fully insured plans should contact their insurance companies to confirm that this has been done.

Employers with self-insured plans will need to submit an attestation (or hire a third-party handle the submission).  Employers with self-insured plans will need to identify contracts that may contain gag clauses.  They often will show up in agreements with TPAs, provider networks, PBMs, managed care organization or other vendors that perform claims-related services to the plan.  Keep in mind that a gag clause can include indirect prohibitions.

The attestation itself should be submitted electronically through the CMS website.

An Example

A provision in a contract between a TPA and a plan that provides that the plan sponsor’s access to provider-specific cost and quality of care information is only at the discretion of the TPA would be considered a prohibited gag clause, even if the TPA actually grants such access.

Employers that find that they do have contracts that contain prohibited clauses should promptly consult with counsel for advice.

Have more questions about how to comply? Contact our compliance nerds today!