By December 31, 2023, group health plans and health insurance issuers must submit an attestation to certify compliance with the “gag clause prohibition” under the Consolidated Appropriations Act of 2021 (CAA).

The CAA prohibits group health plans and health insurance issuers from entering into agreements with healthcare providers, third-party administrators, and other service providers that include contractual terms (gag clauses) that would directly or indirectly restrict the group health plan or health insurance issuer from sharing certain information with plan sponsors and participants, including: provider-specific cost and quality-of-care information; or de-identified claims data.

An example of a gag clause would be a provision in a third-party administrator’s agreement that restricts or prevents disclosure of quality-of-care information because it is proprietary.

Plan sponsors should take the following steps to ensure compliance with the CAA’s gag clause prohibition and attestation requirement:

  1. Review agreements with third-party administrators and other health plan service providers to ensure the agreements do not include prohibited language.
  2. If agreements with third-party administrators or health plan service providers include a gag clause, ensure amendments are adopted to remove the prohibited language.
  3. Make the attestation online via the Centers for Medicare & Medicaid Services Website no later than the due date (discussed below). A third party may submit the attestation on behalf of a plan, but note that the responsibility to comply with the attestation requirement remains with the plan. Therefore, it is imperative for plans to contact their insurance issuer or third-party administrator prior to the submission deadline if they intend to rely on the third party to meet the attestation requirement.
  4. Ensure that the attestation is made annually by December 31. As mentioned above, the first attestation is due December 31, 2023. The first attestation will cover the period from December 27, 2020, through the date of the first attestation. Moving forward, the CAA requires an annual attestation by December 31 of each subsequent year.

If you have any questions concerning the CAA’s annual gag clause attestation requirement, please contact a member of our Employee Benefits team.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Susie Bilbro Susie Bilbro

Susie Bilbro advises clients on all aspects of employee benefit plan design and administration including compliance with ERISA, the Patient Protection and Affordable Care Act (healthcare reform), COBRA and the Internal Revenue Code. She has counseled public and private clients on employee welfare…

Susie Bilbro advises clients on all aspects of employee benefit plan design and administration including compliance with ERISA, the Patient Protection and Affordable Care Act (healthcare reform), COBRA and the Internal Revenue Code. She has counseled public and private clients on employee welfare and pension benefits issues, both in connection with corporate transactions and on day-to-day administration. In addition, Susie has prepared submissions to the IRS and Department of Labor for qualified retirement and welfare benefit plans. Susie also has experience advising clients on executive compensation arrangements.

Photo of Doug Dahl Doug Dahl

Doug Dahl provides technical knowledge and advice to companies on a wide range of federal tax and ERISA matters regarding employee benefits, including qualified retirement plans, executive compensation arrangements and health and welfare plans. Doug regularly assists companies with employee benefit issues that…

Doug Dahl provides technical knowledge and advice to companies on a wide range of federal tax and ERISA matters regarding employee benefits, including qualified retirement plans, executive compensation arrangements and health and welfare plans. Doug regularly assists companies with employee benefit issues that arise during and following various corporate transactions and events, such as mergers, acquisitions, dispositions and bankruptcies.

Photo of Will Gebo Will Gebo

Will Gebo works with clients on the design, implementation and administration of qualified benefit plans, health and welfare benefit plans and deferred compensation packages. He also provides diligence and support on employee benefits and compensation issues arising in mergers, acquisitions and other corporate…

Will Gebo works with clients on the design, implementation and administration of qualified benefit plans, health and welfare benefit plans and deferred compensation packages. He also provides diligence and support on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions.

Photo of Kimia Movahed Kimia Movahed

Kimia Movahed counsels clients on the design, implementation and administration of qualified employee benefit plans, health and welfare benefit plans and deferred compensation packages. She also provides advice on employee benefits and compensation issues arising in mergers, acquisitions and other corporate transactions.