Oct 26, 2023
What is the Gag Clause
Section 201 of the Consolidated Appropriations Act, 2021 (CAA) established a prohibition on “gag clauses” in contracts with health care providers. A “gag clause” is a contractual term that directly or indirectly restricts specific data and information that a health plan or insurer can make available to another party, such as health care providers, third party administrators (TPAs), or other service providers.
Details
The CAA’s gag clause prohibition bans gag clauses in contracts between group health plans/health insurers with providers that:
- Prevent enrollees, plan sponsors, or referring providers from seeing cost and quality of care data.
- Prevent plan sponsors from accessing de-identified claims data that could be shared, under HIPAA business associate agreements, with third parties for plan administration and quality improvement purposes.
Guidance issued in February 2023 requires group health plans and health insurance issuers to annually attest that they comply with this provision. More information on how Florida Blue will implement this new requirement is provided below. These changes are part of the broader price transparency provisions of the CAA, which also include the patient protections against surprise billing, prescription drug cost reporting, machine-readable file cost disclosures, and member-level cost-sharing disclosures.
How has Florida Blue implemented the requirement to eliminate gag clauses in its provider contracts?
When the CAA was passed in December 2020, Florida Blue sent a notification to all of our providers that any gag clauses in existing provider contracts will no longer be honored (or permitted in future contracts) in order to comply with the law.
When do gag clause attestations have to be submitted?
Group health plans and health insurers must submit an attestation each year to confirm that they have not entered into any prohibited contractual restrictions with providers. The first attestation is due by December 31, 2023, and covers the time period from December 2020 through December 2023. Subsequent attestations will be due by December 31 of each year for that calendar year.
How will Florida Blue handle the annual gag clause attestation for its group clients?
Florida Blue will file the annual gag clause attestation on behalf of all of their groups administered on our Florida Blue and new ASO operational platforms, regardless of group size or funding type, for the provider contracts that we directly control. Each attestation will include all active and former groups who were under contract during the reporting period.
Will Florida Blue be asking groups to submit information to support the annual attestation?
Not at this time. Based on the current attestation data requirements, we do not anticipate requesting additional information from our employer groups.
Will Florida Blue be charging groups a separate fee for this annual attestation?
Not at this time. However, this is subject to change if there are future revisions to the data requirements for subsequent attestations.
