Health care plans must submit gag clause attestations by December 31, 2023, per the 2020 federal prohibition of gag clauses.
The Departments of Labor, Health and Human Services and the Treasury (the “Departments”) issued FAQs on the prohibition of gag clauses under the transparency provisions of the Consolidated Appropriations Act, 2021 (CAA).
As outlined in the FAQs, plans and issuers must annually submit an attestation of compliance with the CAA’s prohibition of gag clauses to the Departments of Labor, Health and Human Services, and the Treasury. This year, they must submit their first attestation of compliance by December 31, 2023.
In 2020, the CAA prohibited health plans and issuers from entering into contracts with health care providers, third-party administrators (TPAs) or other service providers that would “restrict the plan or issuer from providing, accessing or sharing certain information about provider price and quality and deidentified claims.”
Bolton defines gag clause as “a contractual term that directly or indirectly restricts specific data and information that a health plan or issuer can make available to another party.”
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.
The Departments launched a website for health plans and issuers to submit their gag clause compliance attestations and have 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).
According to Bolton:
Employers should ensure any contracts with TPAs or other health plan service providers offering access to a network of providers do not violate the CAA’s prohibition of gag clauses. Also, employers with fully insured or self-insured health plans should prepare to provide the compliance attestation by Dec. 31, 2023. If the issuer for a fully insured health plan provides the attestation, the plan does not also need to provide an attestation. Also, employers with self-insured health plans can enter into written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan.
Read more about these requirements and how to submit attestations.
