The Consolidated Appropriations Act (CAA) of 2021 prohibits health plans and carriers from entering into agreements with healthcare providers, third-party administrators (TPAs), or other service providers that would prevent disclosures of cost or certain other information to plan participants, plan sponsors, and other entities (the “gag clause prohibition”).

The FAQs issued on February 23rd explain that a gag clause is a “contractual term that directly or indirectly restricts specific data and information that a plan or issuer [carrier] can make available to another party.”

The CAA requires that group health plans and carriers attest annually that they are compliant with the gag clause prohibition. The annual attestation must be submitted to the CMS by December 31st each year, starting in 2023. This applies to all fully insured and self-insured group health plans, including ERISA plans, nonfederal governmental plans, and church plans. The requirement also applies regardless of whether a plan is considered grandfathered under the ACA. Attestation is not required for excepted benefits, Medicare supplements, TRICARE supplements, health reimbursement arrangements (HRAs), or other account-based plans.

Insurance carriers may submit attestation to the CMS on behalf of insured group health plans. Please keep an eye out for your insurance carrier’s notice advising whether you will need to submit the attestation for your group health plan.

Employers with self-insured plans may enter into a written agreement under which the plan’s TPA will submit the attestation to the CMS on behalf of the plan. However, for most self-insured plans we expect that the employer will need to submit their own attestation. Please keep an eye out for your TPA’s notice advising whether you will need to submit the attestation for your group health plan.

If a carrier or TPA is not submitting an attestation to the CMS on behalf of a group health plan, the employer will need to submit their own attestation. The process is completed through the CMS HIOS portal. The employer must create a login to submit the attestation, but it does not need to go through the complex registration process that was required for RxDC submissions. Please refer to the official CMS guidance when completing the attestation.

CAA Gag Clause Attestation: Action May be Required by 12/31