Can you give me more information about this gag clause prohibition that I’ve been hearing about?

To improve transparency in the group health plan context, the Consolidated Appropriations Act, 2021 (CAA, 2021) amended ERISA to require the removal of gag clauses in service provider contracts. In addition, employers annually must formally attest to satisfying this requirement, with the first attestation due by the end of 2023.

Specifically, under the CAA, 2021 gag clause prohibition, group health plans and insurers are prohibited from entering into agreements with a healthcare provider, provider network, TPA, or other service provider offering access to a provider network that include:

1. Restrictions on the disclosure of provider-specific cost or quality of care information or data to the plan sponsor, participants, beneficiaries, or enrollees (or those eligible to become participants, beneficiaries, or enrollees of the plan or coverage).
2. Restrictions on electronic access to de-identified claims and encounter information for each participant, beneficiary, or enrollee upon request and consistent with HIPAA, GINA, and ADA privacy regulations.
3. Restrictions on sharing information or data described in (1) and (2) or directing that such information or data be shared with a business associate, consistent with applicable privacy regulations.

Group health plans subject to the prohibition and attestation requirements include, but are not limited to, major medical plans, prescription drug plans, and pharmacy benefit plans. Point solution programs that are group health plans are subject to the requirements unless an exception applies. There are no exceptions for non-federal governmental plans (such as plans sponsored by state and local governments), church plans, or grandfathered or grandmothered plans.

However, the gag clause prohibition and attestation requirements do not apply to short-term limited duration insurance and ACA-excepted benefits, such as limited-scope dental and vision plans, long-term care plans, certain hospital or other fixed indemnity insurance, specific disease or illness insurance, and accident, disability, and workers’ compensation benefits. Additionally, the departments are not enforcing the requirements with respect to health reimbursement arrangements (HRAs) or health flexible spending accounts (Health FSAs).

Group health plans and health insurers must annually submit to CMS an attestation of compliance with the CAA, 2021 gag clause prohibition. The first Gag Clause Prohibition Compliance Attestation (GCPCA) is due no later than December 31, 2023, covering the period beginning December 27, 2020, or the effective date of the applicable group health plan (if later), through the date of attestation. Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter. Plans and insurers that do not submit their required attestation by the deadlines may be subject to enforcement action.