The U.S. Departments of Labor (DOL), Health and Human Services (HHS), and Internal Revenue Service (IRS) have jointly issued FAQs clarifying plan sponsors’ obligations with respect to provisions of the 2021 Consolidated Appropriations Act (CAA 2021) that prohibit “gag clauses” in health plan agreements. Specifically, the FAQs provide instructions for plan sponsors to annually attest that they are complying with CAA 2021 provisions that preclude contractual clauses limiting disclosures of information related to cost or quality of care. The required attestations will be due at the end of 2023 and each year thereafter.

Background

• CAA 2021 prohibits group health plans/insurers and service providers, including TPAs, from implementing any contractual clause that “directly or indirectly restricts specific data and information that a plan or issuer can make available to another party,” such as the disclosure of provider-specific cost/quality of care information to providers, plan sponsors, or participants, or electronic access to de-identified claim data (consistent with applicable privacy protections). Examples of prohibited gag clauses include:
  • Restrictions on disclosure of “proprietary” provider rates
  • Stipulations that provider-specific cost and quality-of-care information may only be accessed at a TPA’s discretion
• The FAQs allow for “reasonable restrictions” on public disclosure of cost and quality-of-care information but do not provide examples of reasonable restrictions.

Attestation of Compliance

• Plans and issuers are required to annually file an attestation that they are complying with the CAA 2021 gag clause prohibition.
• The first such attestation, covering the period between December 27, 2020 (or the effective date of the plan, if later) and the date the attestation is filed, must be submitted no later than December 31, 2023. Subsequent attestations, covering the period between the previous attestation and the date the current attestation is submitted, will be due no later than December 31 of each year.
• The gag clause attestation requirement applies to fully insured and self-insured group health plans. Attestation is not required for excepted benefits. The requirement will not be enforced against HRAs or other account-based plans.
• Self-insured plans may contract with service providers, such as TPAs, to submit the required attestation on their behalf, although the legal responsibility remains with the plan.
• In the case of fully insured plans, the insurance issuer’s submission of the attestation on behalf of the plan will be considered to have satisfied the attestation requirement for both issuer and plan sponsor.
• Attestations may be submitted on the HIOS website. Additional resources, including submission instructions and a template for reporting entities, may also be accessed on the CMS website.