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).
- 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.
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, 2025 for any contract entered on or after the 2024 attestation. Since you cannot attest to contracts not entered into at the time of submittal, the latest date that can be used for the 2025 date attestation is the submission date.
Groups who must file the attestation will want to visit the Gag Clause Prohibition Compliance Attestation Website for the manual, instructions and attestations document.
Employer Resources
DOL Issues Gag Clause Attestation Resources for 2025
Instructions for submitting the GCPCA (PDF)
User Manual for submitting the GCPCA (PDF)
