Q: Group Medical Health Plans must submit a No Gag Clause Attestation under the Consolidated Appropriations Act (CAA) of 2021. What is a gag clause and what are the employer responsibilities and compliance dates?
A: 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. The requirement for attestations is for group medical plans and does not include excepted benefits such as dental, vision and Health Reimbursement Accounts (including ICHRAs).
The Gag Clause specifically states that the contracts cannot restrict a plan or issuer from:
1. 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);
2. 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
3. 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.
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 on gag clauses.
Generally, if a plan was fully-insured during the attestation period for both medical and prescription drugs, the insurer will submit an attestation on the group’s behalf. Liberty Insurance Agency has confirmed with benefit client’s fully-insured carriers that they will be providing the attestation for the employer’s group health plan.
Self-insured and level-funded plans will most likely need to submit the attestation through the CMS website and will need to create an account and will follow the instructions on the website. The Gag Clause Attestations are due December 31, 2023 for any contract entered on or after December 27, 2020. The initial attestation will be for the years 2021, 2022 and 2023. The attestations for the years after 2023 will be due on December 31st each year. Groups who must file the attestation will want to visit the Gag Clause Prohibition Compliance Attestation Website for the manual, instructions and attestations document.