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Published October 21, 2024

Gag Clause Attestation Deadline: December 31, 2024

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Under the transparency provisions of the Consolidated Appropriations Act, 2021 (CAA), health plans and issuers must annually submit an attestation of compliance with the gag clause prohibition to the Departments of Labor, Health and Human Services and the Treasury (Departments). This is due by December 31, 2024.

What is the Consolidated Appropriations Act, 2021?

The CAA, 2021 was a House Resolution that provided $2.3 trillion in spending, including $900 million in stimulus relief for the COVID-19 pandemic.

The CAA prohibits health plans and insurance issuers from entering into contracts with healthcare providers, third-party administrators (TPAs) or other service providers that contain gag clauses. The first attestation was due December 31, 2023. The attestation due by year-end covers the period since the last attestation.

Highlights

  • Health plans and issuers must ensure their agreements with healthcare providers, TPAs and other service providers do not include gag clauses.
  • Health plans and issuers must submit an annual attestation of their compliance.
  • The Departments may take action against plans and issuers that violate these regulations, or that fail to submit the required attestations.

What is a Gag Clause?

A gag clause is any contractual restriction preventing a health plan or issuer from providing, accessing or sharing certain information, such as provider price/quality and de-identified claims.

In the case of the CAA, group plans and issuers are prohibited from entering into agreements with any partners who restricts them from:

  • Providing provider-specific cost or quality of care information or data to referring providers, the plan sponsor, participants, beneficiaries, or enrollees; or
  • Electronically accessing (de-identified) claims information for each participant, beneficiary or enrollee upon request, consistent with existing privacy regulations*
  • Sharing information described in either of the above items, or directing such information to be shared with a business associate, consistent with applicable privacy rules

* = pursuant to HIPAA, GINA and ADA

Plans and issuers must ensure their agreements with healthcare providers, networks or associations of providers, TPAs or other service providers offering access to a network of providers don’t contain provisions that violate the CAA’s prohibition of gag clauses.

Covered Health Plans

The attestation requirement applies to fully insured and self-insured group health plans, including ERISA plans, nonfederal governmental plans and church plans. Additionally, this requirement applies 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.

Taking Action

Employers should review all contracts and agreements with service providers to ensure they do not contain prohibited gag clauses.

Employers with fully-insured plans do not need to provide attestation if their plan’s issuer provides the attestation. Self-insured employers can enter into agreements with their TPAs to provide the attestation, but the legal responsibility still remains with the health plan.


This document is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice.  Gregory & Appel is neither a law firm nor a tax advisor; information in all Gregory & Appel materials is meant to be informational and does not constitute legal or tax advice.

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