Earlier this year, the Departments of Labor, Health and Human Services, and the Treasury (Departments) issued FAQ guidance on the prohibition of gag clauses under the transparency provisions of the Consolidated Appropriations Act of 2021 (CAA). These FAQs require health plans and health insurance issuers to submit their first attestation of compliance with the CAA’s prohibition of gag clauses by Dec. 31, 2023.
Plans and issuers must annually submit an attestation of compliance with these requirements to the Departments. The first attestation is due by Dec. 31, 2023, covering the period beginning Dec. 27, 2020, through the date of attestation. Subsequent attestations, covering the period since the last attestation, are due by Dec. 31 of each following year.
Prohibitions on Gag Clauses
A gag clause is a contractual term that directly or indirectly restricts specific data and information that a health plan or issuer can make available to another party. Effective Dec. 27, 2020, the CAA generally prohibits group health plans and issuers offering group health insurance from entering into agreements with health care providers, TPAs or other service providers that include certain gag clause language. Specifically, these contracts cannot restrict a plan or issuer from:
Providing provider-specific cost or quality-of-care information or data to referring providers, the plan sponsor, participants, beneficiaries or enrollees (or individuals eligible to become participants, beneficiaries or enrollees of the plan or coverage);
Electronically accessing de-identified claims and encounter information or data for each participant, beneficiary or enrollee upon request and 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 information or data described in (1) and (2) above or directing such information to be shared with a business associate, consistent with applicable privacy rules.
For example, if a contract between a TPA and a health plan provides that the plan sponsor’s access to provider-specific cost and quality-of-care information is only at the discretion of the TPA, that contractual provision would be considered a prohibited gag clause.
Plans and issuers must ensure their agreements with health care providers, networks or associations of providers, TPAs or other service providers offering access to a network of providers do not contain provisions that violate the CAA’s prohibition of gag clauses.
Gag Clause Compliance Attestations
Health plans and issuers must annually submit an attestation of their compliance with the CAA’s prohibition of gag clauses to the Departments. The first attestation must be submitted no later than Dec. 31, 2023, covering the period beginning Dec. 27, 2020, through the date of the attestation. Subsequent attestations are due by Dec. 31 of each following year, covering the period since the last attestation.
According to the Departments’ FAQs, health plans and issuers that do not submit their attestations by the deadline may be subject to enforcement action.
Covered Health Plans
The attestation requirement applies to fully insured and self-insured group health plans, including ERISA plans, non-federal governmental plans and church plans. Additionally, this requirement applies regardless of whether a plan is considered “grandfathered” under the ACA. However, plans that only provide excepted benefits and account-based plans, such as health reimbursement arrangements (HRAs), are not required to submit an attestation.
Relying on Issuers/TPAs to Submit Attestation
With respect to fully insured group health plans, the health plan and the issuer are each required to submit a gag clause compliance attestation annually. However, when the issuer of a fully insured group health plan submits a gag clause compliance attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.
Employers with self-insured health plans can satisfy the gag clause compliance attestation requirement by entering into a written agreement under which the plan’s service provider, such as a TPA, will provide the attestation on the plan’s behalf. However, even if this type of agreement is in place, the legal requirement to provide a timely attestation remains with the health plan.
Fully-insured carriers and self-funded plan TPAs will be taking one of three approaches:
Provide and submit the attestation on behalf of the employer plan sponsor (least likely);
Provide the attestation, which will require the employer plan sponsor to submit on their own (most likely);
Refuse to provide the attestation, which will require the employer plan sponsor to determine whether their plan is compliant with the gag clause prohibition and submit on their own (unfortunately possible).
Attestation Website
The Departments launched a website through the Centers for Medicare and Medicaid Services for health plans and issuers to submit their gag clause compliance attestations. The Departments have also provided instructions for submitting the attestation, a system user manual, and a reporting entity Excel template for plans and issuers to submit the required attestation, all of which are available here.
Action Items
Note the approach of your carrier or TPA. These organizations are beginning to publish their response processes and will continue to do over the next few months. If you haven’t heard from your carrier or TPA, be patient and count on us to keep you informed about your compliance attestation obligations.
If you must submit the attestation on your own, we will support your efforts to submit to the CMS website, utilizing the instructions published. Unfortunately, we cannot submit on your behalf due to how the website is configured – it must be either the carrier or plan sponsor.
If it becomes apparent that you will be required to determine gag clause compliance on your own, we will support those efforts as well. We are in the process of gathering information from carriers and TPAs, evaluating if a tool can be developed or a third-party resource can be utilized. Please stay tuned.
As always, if you have any questions about your obligations or your carrier/TPA’s response, please contact your trusted Cottingham and Butler service team member.