Reminder - Gag Clause Attestation Due by December 31, 2023

REMINDER: Gag Clause Attestation Due by December 31, 2023

Background

The Internal Revenue Service (IRS), Department of Labor (DOL), and Department of Human Services (HHS) [collectively, “the Departments”] have released guidance regarding the requirement for employer sponsored health plans and health insurance carriers to submit an attestation of compliance with the gag clause prohibitions contained in The Consolidated Appropriations Act (CAA). The first attestation must be submitted by December 31, 2023. The first attestations apply to the period from December 27, 2020 through December 31, 2023. Most employers will be able to rely on their carrier or third-party administrator (TPA) to submit the required attestation. However, employers should be talking with their carrier or TPA!

As noted in the FAQS published on February 23, 2023 the CAA prohibits the following items in any plan contract from being subject to a gag clause.

1. Restrictions on any disclosure of provider specific cost or quality of care information and supporting data
2. Restrictions on electronic access to de-identified claims data of any plan participant
3. Restrictions on sharing above information and/or data with a business associate

Who Must Complete the Attestation on Behalf of Employer Sponsored Plans?

Employers typically rely on their carrier, TPA, or network to contract with medical providers to provide services to participants in the health plans offered to employees. The Departments recognize that employers rarely directly enter into agreements with health care providers, so the guidance makes it clear that if specific requirements are met, employers can rely on their carrier or TPA to submit the Attestation on behalf of their employer-sponsored plans.

Plans Required to Comply

• Fully Insured Plans
• Self-Insured and Level Funded Plans
• ERISA Plans 
• Non-Federal Governmental Plans
• Church Plans
• Grandfathered Plans
• Non-Grandfathered Plans

Plans Not Required to Comply

• Plans offering only excepted benefits (Accident only, Disability, Workers Comp, Standalone Dental or Vision, Medicare Supplemental)
• Plans offering only short-term, limit-duration insurance
• Medicare and Medicaid plans
• Health Reimbursement Arrangements

Self-inured Employer Plans

Self-insured and Level Funded plans may satisfy the requirement to provide an Attestation by entering into a written agreement under which the plan’s service provider(s), such as a TPA, will submit the required Attestation. The guidance does not define what constitutes an acceptable written agreement. However, the Departments point out that if a self-insured plan chooses to enter into such an agreement with the plan’s service provider(s), the legal requirement to provide a timely Attestation remains with the employer’s plan.

Fully Insured Employer Plans

Since carriers are required to submit an Attestation regarding the plans they offer, employers may generally rely on the carrier to submit the required Attestation. While liability for the submission rests with the carrier, employers should still seek assurance from their carrier that the Attestation is being submitted.

Employer Direct Provider Contract Arrangements

Some employers enter direct contracts with providers. In these cases, the employer may need to take responsibility for submitting the Attestation on behalf of their plan.

How it the Attestation Submitted?

The Departments have launched a website for submitting the Attestation and have issued instructions, a system user manual, and an Excel reporting template for plans and issuers to submit the required attestation. Plans and issuers are required to use the CMS website to satisfy the requirement to submit an annual Attestation.

Summary

Most employers will need to rely on their vendor (health insurance carrier or TPA) to comply with the rules. While fully insured employer will be able to rely on carriers to submit the attestation on behalf of their plan, this is another health cost transparency-related compliance requirement (similar to the posting of the machine-readable cost files and prescription drug cost reporting) where it is a bit more complicated for self-insured employers. In all these examples, the Departments have made it clear that if a self-insured employer contracts with their vendor for assistance, the employer is still liable for the compliance of their plan and will need to make sure their vendor is meeting the requirements.

More Resources

More information, including links to the guidance, submission instructions for entities required to submit the attestation, and more, can be found here.

• Instructions for submitting the Attestation
• User Manual for submitting the Attestation

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