Deadline for Submitting Gag Clause Attestation Is Dec. 31, 2024

Effective in 2020, the Consolidated Appropriations Act, 2021 (CAA) prohibits health plans and health insurance issuers from entering into contracts with health care providers, third-party administrators (TPAs) or other service providers that contain gag clauses (i.e., clauses restricting the plan or issuer from providing, accessing or sharing certain information about provider price and quality and de-identified claims).

Plans and issuers must annually submit an attestation of compliance with the CAA’s gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury (Departments). The first attestation was due on Dec. 31, 2023. The next attestation is due Dec. 31, 2024, covering the period since the last attestation.

Employers should review their contracts with issuers, TPAs or other health plan service providers to confirm they do not contain prohibited gag clauses. Also, employers should review what actions they may need to take to comply with the gag clause attestation requirement:

• Employers with fully insured health plans do not need to provide an attestation if their plan’s issuer provides the attestation; and
• Self-insured employers can enter into written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan. While some TPAs are willing to submit attestations on behalf of their self-insured groups, other TPAs may be unwilling to do so.

Employers who submit their own attestations should review the latest instructions and user manual for submitting attestations electronically through the Centers for Medicare and Medicaid Services (CMS).

Action Steps

• Health plans and issuers must ensure their agreements with providers, TPAs and other service providers do not include prohibited gag clauses.
• Health plans and issuers must submit an annual attestation of their compliance with the CAA’s gag clause prohibition.
• The Departments may take enforcement action against plans and issuers that do not timely submit the required attestations.

Resources

• FAQs from the Departments regarding the CAA’s prohibition on gag clauses in provider agreements
• CMS website for submitting gag clause attestations
• The latest instructions and user manual for submitting attestations available here