Gag Clause Prohibition Compliance Attestation

Title II (Transparency) of Division BB of the Consolidated Appropriations Act (“CAA”) prohibits group health plans from entering into an agreement with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider that include language that would constitute a “gag clause.” Specifically, these agreements cannot directly or indirectly:

• Block or bar disclosure of provider-specific costs; 
• Block or bar disclosure of provider-specific Quality-of-Care data; 
• Block or bar electronic access of de-identified claims information; 
• Prohibit sharing any of the preceding information with a Plan Member or Business Associate 

However, the prohibition on gag clauses does not prevent health care providers, networks or associations of providers, or other service providers from placing reasonable restrictions on any of the information covered by the gag clause requirements.

Fully funded plans will typically have their Gag Clause Prohibition Compliance Attestation (GCPCA) requirements met by the insurance carriers. Self-funded and level-funded plans may work with their Third-Party Administrator (TPA), Pharmacy Benefits Manager (PBM), or another service provider to meet the requirements of this attestation. If an insurer or TPA is not willing to make the attestation on behalf of their clients, the responsibility for making the filing remains with the Plan Sponsor. 

The gag clause provisions became effective on December 27, 2020, and group health plans are legally required under the CAA to submit an annual attestation of compliance (a “Compliance Attestation”) to the United States Departments of Labor, Health and Human Services, and the Treasury. These group health plans include ERISA-governed plans, non-Federal government plans, and church plans subject to the Internal revenue code. Both grandfathered and non-grandfathered group health plans must comply with the attestation. (A plan, however, is not required to attest with respect to any excepted benefits or health reimbursement arrangements.)

The Compliance Attestation must be filed online through the Center for Medicare & Medicaid Services’ Health Insurance Oversight Systems. For more information and instructions, click here.

The first Compliance Attestation is due no later than December 31, 2023, and covers the period from December 27, 2020, through the date of attestation. Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter.

Contact your Account Executive if you have any questions or need assistance.