October 4, 2023

On Feb. 23, 2023, the Departments of Labor, Health and Human Services and the Treasury (Departments) issued FAQs on the prohibition of gag clauses under the transparency provisions of the Consolidated Appropriations Act, 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.  

Effective Dec. 27, 2020, the CAA prohibits 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.

Plans (self-funded employers) 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. While an employer plan’s TPA or service provider generally enters into these contracts with providers, regulations make the self-funded employer ultimately responsible.

For more background on the “No Gag Clause” see a previous Apex Bulletin here: https://apexbg.com/gag-clause-attestations-must-be-submitted-by-dec-31-2023/

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