Departments Issue Guidance on CAA Gag Clause Attestation

On February 23, 2023, the DOL, HHS and IRS (the departments) released FAQs regarding implementing certain transparency requirements under the Consolidated Appropriations Act, 2021 (CAA, 2021). Specifically, the guidance addresses the annual attestation of compliance with the CAA, 2021 prohibition against gag clauses.

The FAQs explain that a “gag clause” in the healthcare context refers to a contractual term that directly or indirectly restricts information that a group health plan or insurer can access or make available to another party. Effective December 27, 2020, the CAA, 2021 generally prohibited plans and insurers from entering into agreements with providers, TPAs and other service providers that include gag clauses that restrict:

1. Disclosure of provider-specific cost or quality of care information to the plan sponsor, participants, beneficiaries or referring providers.
2. Electronic access to de-identified claims and encounter information for each participant or beneficiary upon request, consistent with privacy regulations under the ADA, GINA and HIPAA.
3. Sharing information described in (1) and (2) or directing that such information be shared with a business associate, consistent with applicable privacy regulations.

Plans and insurers must submit an annual attestation of compliance with these gag clause prohibitions. The FAQs specify that the first “Gag Clause Prohibition Compliance Attestation” is due no later than December 31, 2023, covering the period beginning December 27, 2020 (or the effective date of the 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. The attestation must be submitted to CMS through the Gag Clause Prohibition Compliance Attestation System. Instructions, a system user manual and an Excel template are available for review on the CMS website. Plans and insurers that do not submit the required attestation may be subject to enforcement action.

The gag clause prohibitions and compliance attestations apply to fully insured and self-insured plans (including level-funded plans), regardless of grandmothered or grandfathered plan status. However, the requirements do not apply to plans offering only excepted benefits and will not be enforced with respect to HRAs integrated with a group health plan or insurance. For fully insured plans, the plan and the insurer are each required to annually submit the attestation. However, the insurer’s submission of the attestation on behalf of the plan will satisfy the attestation requirements for both the plan and insurer. Self-insured and level-funded plans may enter a written agreement with a TPA or service provider to attest on the plan’s behalf, but the plans remain ultimately responsible for satisfying the requirements.

Group health plan sponsors should be aware of this new guidance and ensure that their contracts with providers do not reflect any prohibited gag clauses. Sponsors should contact and coordinate with their insurers, TPAs, PBMs and other service providers to ensure the required attestations are submitted by December 31, 2023.

FAQs Part 57 »
Gag Clause Prohibition Compliance Attestation System »
Instructions »
User Manual »
Template »