UPDATE: UPCOMING GAG CLAUSE ATTESTATION REQUIREMENT

The Consolidated Appropriations Act, 2021 (CAA) prohibits the inclusion of “gag clauses” in provider contracts with insurers and group health plans. According to the law, a gag clause is a contract provision that directly or indirectly restricts a plan or issuer from sharing specific cost and quality information with another party. For example, if a TPA’s contract with a self-funded plan only allows the self-funded plan to access provider-specific costs and/or quality of care information if the TPA decides to release that information to the group plan, then that would be considered a prohibited gag clause. However, healthcare providers, networks, TPAs, and other service providers may place reasonable restrictions on public disclosure of information.

Group health plan sponsors must formally attest that their plan network and provider contracts issued since December 27, 2020, do not include gag clauses. The requirement applies to major medical group health insurance plans; it does not apply to excepted benefits like standalone vision and dental coverage. This attestation must be made to the federal government on or before December 31, 2023, and group plan sponsors will need to repeat this process annually to keep their attestations current. Employers or their service providers will make these attestations by filling out an online form accessible through the federal Health Insurance Oversight System (HIOS system).  Additional information on gag clause attestations, including Frequently Asked Questions, submission instructions, a submission user manual, and the reporting template, is available here.

While the responsibility to submit gag clause attestations ultimately rests with each employer offering group health insurance to employees, group health plans can delegate this responsibility to their health insurance carrier, TPA, or other service providers.  Health insurance issuers and TPAs can choose to file a single attestation covering all group plan contracts, but it is up to each employer to determine if their attestation will be covered by another entity’s submission.  Here are actions steps brokers can take now to make sure their group plan clients will be covered when it comes to making their gag clause attestations later this year.

Fully Insured Groups

1. Check with all the health insurance carriers you work with to ensure that they will be filing gag clause attestations on behalf of all of their group plans.
2. Check each carrier’s 2023 plan year service agreements to see if they have promised to complete this submission for your client(s).
3. If a client does not have a written agreement in place with their carrier regarding this submission, secure written documentation that the issuer will submit an attestation for the specific group by December 31, 2023.
4. Make sure that gag clause attestation submission agreement language is included in 2024 plan year service agreements, since submitting gag clause attestations is now an annual requirement.

Self-Funded Groups

1. Check with all the TPAs you work with, including issuers who also administer self-funded groups, to see what gag clause attestation assistance they will be providing to their self-funded and level-funded group clients.
2. If a TPA is also a health insurance carrier, then they may include their self-funded and level-funded group plans in any bulk gag clause attestation they may make to CMS.  So, check the administrative service agreements of each of your affected self-funded and/or level-funded groups plan year service agreements to see if the carrier providing administrative services for the group promised to complete this submission for your client(s).
3. If a client’s TPA will assist with the submission and the employer group plan does not have written agreement in place with the TPA regarding this submission, secure written documentation that the TPA will submit an attestation for the specific group by December 31, 2023.
4. If a TPA is not able or willing to assist self-funded group plans with their attestations, request copies of all relevant contracts to review and insist that the TPA remove any direct gag clauses or indirect restrictions on the disclosure of data. Also, obtain written documentation from the TPA stating that their contracts do not include gag clauses or that such clauses have been removed.
5. Visit the HIOS website to initiate the process of obtaining a log-in for any clients whose TPAs require their employer group plan clients to complete their own submission on or before December 31, 2023.
6. Make sure that gag clause attestation submission assistance language is included in 2024 plan year TPA service agreements since submitting gag clause attestations is now an annual requirement.