The Consolidated Appropriations Act of 2021 generally requires group health plans and health insurance issuers to submit a Gag Clause Prohibition Compliance Attestation (Attestation) each year to demonstrate compliance with the prohibition on including gag clauses in certain agreements.  The Departments of Labor, Health and Human Services, and the Treasury (the Departments) issued FAQs last February requiring affected plans and issuers to submit their first Attestations no later than December 31, 2023, covering the period beginning December 27, 2020 through the attestation date, with subsequent Attestations due annually thereafter.

Prohibition on Gag Clauses

Group health plans and health insurance issuers offering group health insurance coverage are prohibited by ERISA and the Internal Revenue Code from entering into an agreement with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan or issuer from (i) disclosing provider-specific cost or quality-of-care information to referring providers, plan sponsors, enrollees or eligible individuals; (ii) electronically accessing de-identified claims and encounter information or data for plan participants, beneficiaries, or enrollees, and (iii) sharing such information or data with business associates, consistent with applicable privacy regulations. A similar prohibition applies to health insurers offering individual health insurance coverage under the Public Health Service Act.  These prohibited restrictions are referred to as “gag clauses.”

Attestation of Compliance Required by December 31, 2023

Group health plans and health insurance issues are required to annually attest that they are in compliance with the gag cluse prohibition rules, with the first such attestation due no later than December 31, 2023.  The attestation must be submitted on the CMS website, which includes instructions for submission and additional information.  Plans and issuers that fail to submit their Attestations may be subject to enforcement action.  Note that there are limited exceptions to the attestation requirement (e.g., plans offering only excepted benefits, health care flexible spending accounts, health reimbursement arrangements, etc.).

Next Steps

1. Review applicable contracts to ensure that they do not contain prohibited gag clauses.
2. If the group health plan is fully insured, confirm that the insurer will make the Attestation on behalf of the plan. Note:  The group health plan and the issuer are each required to annually submit an Attestation.  However, the Departments have indicated that when the issuer of a fully insured group health plan submits an Attestation on behalf of the plan, the plan and issuer will be considered to have satisfied the requirement.
3. If the group health plan is self-insured, it may be possible to delegate the responsibility for completing the Attestation to the plan’s TPA. Although this is permitted under law, we are not seeing many TPAs accept this responsibility.  If the TPA is unwilling to submit the Attestation on the plan’s behalf, we recommend requesting that the TPA provide a statement confirming compliance with the gag clause rules.
4. Review existing agreements with insurers/TPAs to ensure that the agreement includes a “compliance with applicable law” provision and consider amending such agreements to address how compliance with the gag clause prohibition and related Attestations will be handled.