October 16, 2024
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Gag Clause Attestations Must Be Submitted By Dec. 31st, 2024
Effective from 2020, the Consolidated Appropriations Act, 2021 (CAA) prohibits health plans and health insurance issuers from entering into contracts with healthcare providers, third-party administrators (TPAs), or other service providers that include gag clauses. These are clauses that limit the plan or issuer from providing, accessing, or sharing specific information about provider pricing, quality, and de-identified claims.
Plans and issuers must submit an annual attestation of compliance with the CAA’s gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury (Departments). The first attestation was due on December 31, 2023. The next attestation is due on December 31, 2024, covering the period since the last attestation.
Action Steps
Employers should examine their contracts with issuers, TPAs, or other health plan service providers to ensure they do not contain prohibited gag clauses. Additionally, employers should consider the necessary actions to comply with the gag clause attestation requirement:
- Employers with fully insured health plans are not required to provide an attestation if their plan’s issuer does so; and
- Self-insured employers can enter written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan. While some TPAs may agree to submit attestations for their self-insured groups, others may decline.
Employers submitting their own attestations should review the latest instructions and user manual for electronic submission through the Centers for Medicare and Medicaid Services (CMS).
Prohibition on Gag Clauses
A gag clause is a contractual term that restricts the availability of specific data and information that a health plan or issuer can share with another party. Effective December 27, 2020, the CAA generally prohibits group health plans and issuers offering group health insurance from entering into agreements that contain certain gag clause language with healthcare providers, TPAs, or other service providers. Specifically, these contracts cannot restrict a plan or issuer from:
- Providing provider-specific cost or quality-of-care information to referring providers, plan sponsors, participants, beneficiaries, or enrollees (or individuals eligible to become participants, beneficiaries, or enrollees);
- Electronically accessing de-identified claims and encounter information for each participant, beneficiary, or enrollee upon request, consistent with privacy rules under the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA), and the Americans with Disabilities Act (ADA); and
- Sharing the information described in (1) and (2) above or directing such information to be shared with a business associate, in accordance with applicable privacy rules.
For instance, if a contract between a TPA and a health plan states that the plan sponsor’s access to provider-specific cost and quality information is solely at the TPA’s discretion, that provision would be deemed a prohibited gag clause.
Plans and issuers must ensure that their agreements with healthcare providers, networks, or associations of providers, TPAs, or other service providers do not include provisions that violate the CAA’s gag clause prohibition.
Gag Clause Compliance Attestations
Health plans and issuers are required to annually submit an attestation of their compliance with the CAA’s prohibition of gag clauses to the departments. The first attestation was due on December 31, 2023, covering the period from December 27, 2020, to the date of attestation. Subsequent attestations are due on December 31 of each following year, covering the period since the last attestation. The next attestation deadline is December 31, 2024.
According to the Departments’ FAQs, health plans and issuers that fail to submit their attestations by the deadline may face enforcement actions.
Covered Health Plans
The attestation requirement applies to both fully insured and self-insured group health plans, including ERISA plans, nonfederal governmental plans, and church plans. This requirement is applicable regardless of whether a plan is considered “grandfathered” under the ACA. However, plans that provide only excepted benefits and account-based plans, such as health reimbursement arrangements (HRAs), are not required to submit an attestation.
Relying on Issuers/TPAs for Attestation Submission
For fully insured group health plans, both the health plan and the issuer are obligated to submit a gag clause compliance attestation annually. However, if the issuer of a fully insured group health plan submits the attestation on behalf of the plan, it will be considered compliant by the Departments.
Employers with self-insured health plans may meet the gag clause compliance attestation requirement by having a written agreement allowing their service provider, such as a TPA, to provide the attestation on their behalf. Nevertheless, the legal obligation to submit a timely attestation remains with the health plan. Furthermore, some service providers may be unwilling to submit attestations for their self-insured clients, necessitating that employers submit the attestations for their health plans.
Submitting Attestations
Gag clause attestations must be submitted electronically via a CMS web form. The Departments have provided detailed instructions for submitting attestations, along with a system user manual and FAQs, all of which can be found here.
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