The federal agencies have issued FAQ guidance addressing provisions of the Consolidated Appropriations Act, 2021 that prohibit “gag clauses” under group health plan (GHP) agreements. The FAQs provide guidance on the prohibition, including directions for submitting an annually required compliance attestation. The first attestation is due by December 31, 2023. This Update details the guidance from the FAQs and references links to the website to be used for submitting these attestations. Most required attestations will be submitted by a GHP’s insured carrier or a self-insured GHP’s third-party administrator (TPA).
Gag Clause Prohibition The prohibition applies to agreements between GHPs or insurers and providers, TPAs, or other service providers. A gag clause is a “contractual term that directly or indirectly restricts specific data and information that a plan or issuer can make available to another party.” Gag clauses might be found in agreements between a plan or issuer and (1) a health care provider, (2) a network or association of providers, (3) a TPA, or (4) another service provider offering access to a network of providers. Specifically, this includes:
Restrictions on the disclosure of provider-specific cost or quality of care information or data to referring providers, the plan sponsor, participants, beneficiaries, or enrollees, or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage;
Restrictions on electronic access to de-identified claims and encounter information or data for each participant, beneficiary, or enrollee upon request (consistent with applicable privacy protections); and
Restrictions on sharing these types of information or data or directing that such information or data be shared, with a business associate.
For example, if a contract between a TPA and a GHP states that the plan will pay providers at rates designated as “Point of Service Rates,” but the TPA considers those rates to be proprietary and therefore includes language in the contract stating that the plan may not disclose the rates to participants, that language prohibiting disclosure would be considered a prohibited gag clause. As another example, if a contract between a TPA and a GHP provides that the plan sponsor’s access to provider-specific cost and quality of care information is only at the discretion of the TPA, that contractual provision would be considered a prohibited gag clause. GHPs and issuers must ensure that their agreements with health care providers, networks or associations of providers, or other service providers offering access to a network of providers do not contain these or other provisions that violate the prohibition on gag clauses.
Compliance Attestation GHPs and insurers must annually submit a Gag Clause Prohibition Compliance Attestation (GCPCA) that their plan is in compliance with the gag clause prohibition. The agencies have issued detailed instructions, a user manual, and a reporting template on the GCPCA webpage and are linked in an EBSA bulletin. Attestations are submitted through CMS’s Health Insurance Oversight System (HIOS). The first GCPCA is due no later than December 31, 2023, covering the period from December 27, 2020 (or, if later, the effective date of the plan or insurance coverage) through the date of attestation. Subsequent attestations are due each December 31. This GCPCA requirement applies to health insurers offering group or individual coverage and to insured and self-insured GHPs, including ERISA plans, non-federal governmental plans, and church plans subject to the Code, regardless of whether the plans are grandfathered or grandmothered under the ACA. Attestation is not required for excepted benefits, and the agencies will not enforce the requirement against health reimbursement arrangements (HRAs) or other account-based plans.
Next Steps GHP sponsors and insurers should review the instructions and technical guidance—and confirm that no prohibited provisions remain in their agreements. Conner Strong & Buckelew will work with the insurers and TPAs on behalf of our clients in preparation for the first GCPCA deadline. Insurers will attest on behalf of a fully insured plan and a self-insured plan may satisfy the requirement to provide a GCPCA by entering into a written agreement under which the plan’s service provider(s) (such as a TPA, including an issuer acting as a TPA) will attest on the plan’s behalf, however the legal requirement technically remains with the GHP. An insurer that provides administrative services to self-insured plans may submit a single attestation covering the insurer, its fully insured plans, and its self-insured plan clients. The FAQs recommend that the insurer coordinate with each plan to avoid duplication.
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