CAA Initial Gag Clause Attestation Is Due by December 31, 2023

The deadline for the first CAA gag clause attestation is fast approaching! Employers should act now to ensure their group health plan contracts are compliant and attestations are timely submitted.

The CAA prohibits group health plans and insurers from directly or indirectly entering contracts offering access to provider networks that contain certain types of gag clauses. In the healthcare context, “gag clauses” are contract terms that restrict information, including provider network rates and de-identified claims data, that plans or insurers can make available to another party, such as a business associate.

Additionally, the CAA requires plans and insurers to annually attest to compliance with the gag clause prohibition via a CMS web form. The first attestation of compliance is due by December 31, 2023, attesting to compliance for contracts entered from December 27, 2020, through the date of the first attestation. Subsequent attestations are due annually by December 31 for contracts entered into from the date of the last attestation.

With a fully insured plan, an insurer can agree to submit the required attestation on behalf of the plan. A self-insured or partially self-insured plan may satisfy the attestation requirement by entering into a written agreement under which the plan’s service provider(s), such as a TPA, will submit the attestation for the plan; however, the plan remains responsible for compliance. Accordingly, employers should coordinate the submission of their annual attestation(s) with each carrier or plan service provider to ensure it is timely submitted.

Further information on the gag clause prohibition and attestation requirements is available on the CMS Gag Clause Prohibition Compliance Attestation website . Please also review our September 28, 2023, FAQ.