The Deadline for Gag Clause Attestations Is Coming, and Clients Need a Plan

An annual compliance deadline is approaching for employers offering their employees group health insurance. The Consolidated Appropriations Act of 2021 (CAA) requires health insurance carriers and employer sponsors of group health plans to submit an annual attestation about the existence of “gag clauses” in any provider, third-party administrator (TPA), or pharmacy benefit manager (PBM) contracts. Attestations must be submitted to the federal Centers for Medicare and Medicaid Services (CMS) on or before December 31, 2024. This year’s submission must specify if, between December 27, 2023, and the date of the attestation, the plan or the carrier has entered into any contracts that would directly or indirectly prevent providers from disclosing cost or quality of care information or data and certain other information.

Health insurance issuers will complete the attestations for their fully insured clients, but brokers must make a gag-clause attestation plan for any level-funded and self-funded groups. First, determine if each group’s TPA, PBM, or another service provider will submit the attestation(s) on their behalf or if the group must complete their submission themselves. Most TPAs and PBMs will submit gag clause attestations for their employer clients with self-funded or level-funded coverage. However, these vendors might have a deadline employers must meet to signify they would like to transfer responsibility to their TPA or PBM. Suppose a group does elect to have a vendor complete the attestation for them. In that case, brokers should ensure that the vendor gives the group sponsor proof of submission and written confirmation that none of their contracts contain gag clauses.

If a self-funded or level-funded group needs to complete their submission, they will do so via the CMS portal. Before completing the process, groups should ask each vendor (TPA, network(s), utilization management entity, PBMs, telemedicine providers, etc.) to provide documentation that their contracts do not contain gag clauses. Once those confirmations are in hand, they can enter the web portal, provide the necessary information, and electronically sign and submit their attestation before December 31, 2024. The online process isn’t complicated, but detailed instructions are available here.