Simplifying the Gag Clause Prohibition: Your Guide to Compliance

Warner Pacific is committed to helping you and your groups navigate the complex landscape of the Gag Clause. Our goal is to give you the guidance you need to help your clients comply. Read below to find out more.

What is the Gag Clause?

Established by the Consolidated Appropriations Act (CAA) of 2021, the Gag Clause has significant implications for health plans, third-party administrators (TPAs) and insurance issuers. Essentially, the CAA generally prohibits group health plans and issuers offering group health insurance from entering into agreements with health care providers, TPAs or other service providers that include certain gag clause language.

Restrictions Include:

Provider-specific information: Health plans can’t be prevented from providing data on provider-specific costs or the quality of care to plan sponsors, participants, beneficiaries or enrollees.

Claims information access: Health plans have to allow electronic access to de-identified claims and encounter data for each participant, beneficiary or enrollee upon request.

Information sharing: The Gag Clause doesn't permit contracts that prevent the sharing of information as described above, including sharing with a business associate.

For instance, if a contract stipulates that the plan sponsor's access to provider-specific cost and quality-of-care information is solely at the discretion of the third-party administrator (TPA), this provision is considered a prohibited gag clause. 

Deadlines & Obligations for Employers

Employers should check contracts with TPAs and other healthcare service providers to ensure they don't violate the prohibition on gag clauses. This is important for employers with fully insured or self-insured health plans, as they are responsible for submitting compliance attestations by December 31, 2023.

It's important to note that if the issuer of a fully insured health plan submits the attestation, the plan itself is not required to provide a separate one.

For self-insured health plans, written agreements can be established with TPAs to submit the attestation, but the ultimate responsibility for compliance rests with the health plan.

Streamlining Compliance Through Issuers and TPAs

In the case of fully insured group health plans, both the health plan and the issuer must submit a compliance attestation every year. But, there's a simplified approach available: 

When the issuer of a fully insured group health plan submits a compliance attestation on behalf of the plan, it satisfies the attestation submission requirement for both parties.

For employers with self-insured health plans, compliance can also be achieved through written agreements.

By entering into an agreement where the plan's service provider, such as a TPA, submits the attestation, employers can fulfill their obligations. It's important to note that even with this arrangement, the responsibility for providing a timely attestation remains with the health plan.

Who Must Submit Attestations?

The attestation requirement applies to a wide range of health plans, including fully insured and self-insured group health plans, such as ERISA plans, non-federal governmental plans, and church plans. This requirement extends to both grandfathered and non-grandfathered plans under the Affordable Care Act (ACA). 

However, it's worth noting that plans offering excepted benefits and account-based plans, like health reimbursement arrangements (HRAs), are exempt from the attestation requirement.

Understanding whether your plan falls under this requirement is essential for compliance. To review a list of who the attestation requirement does and does not apply to, please click here.