The Consolidated Appropriations Act, 2021 (CAA), requires group health plans and insurers to annually attest that they are in compliance with the gag clause prohibition under the CAA. The first attestation is due no later than December 31, 2023 and covers the period from the date of the enactment of the CAA on December 27, 2020 through the date of the attestation. Future attestations will be due each subsequent December 31 and will cover the period since the last attestation was completed.

What Is the Gag Clause Prohibition?

The prohibition requires that a group health plan or insurer not enter into an agreement with a healthcare 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 from

• providing provider-specific cost or quality-of-care information or data, through a consumer tool or any other means, to referring providers, the plan sponsor, participants, or individuals eligible to become participants;
• electronically accessing de-identified claims and encounter information or data for each participant, beneficiary, or enrollee in the plan; or
• sharing information and data with a HIPAA business associate.

What Should Plans Do to Prepare?

In some cases, a group health plan may be able to contractually delegate responsibility for completing the attestation to a TPA or other service provider (a Vendor). Based on our experience, most Vendors have not been agreeable to such delegation. Instead, Vendors are often willing to provide a statement confirming that the existing contract with the group health plan does not contain any gag clause.

Therefore, we recommend that plans reach out to those Vendors that have not proactively notified them that any contracts between their group health plan and the Vendor that were entered into or renewed on or after December 27, 2020 do not violate the CAA’s gag clause prohibition. If a Vendor is unwilling to provide such a confirmation, existing contracts will need to be carefully reviewed to ensure that there is no language that would constitute a prohibited gag clause to allow the plan to make an accurate attestation.

How Do Plans Make the Attestation?

The attestations are all done electronically on the Centers for Medicare & Medicaid Services (CMS) website. A link to the attestation, along with a set of FAQs, instructions, and a user manual for submitting the attestation, can be found on CMS’s website under Resources.

Any questions about the gag clause attestation requirements can be directed to the authors of this post.