By: Michaela Taylor*
If you sponsor a group health plan, make sure you set a calendar alert before the winter holidays to submit the annual gag clause prohibition compliance attestation. Under the Consolidated Appropriations Act of 2021 (CAA), group health plans and health insurance issuers are prohibited from entering into agreements with service providers restricting certain information that the plan may make available to another party. This information includes (i) provider-specific cost or quality information sharing with plan members or (ii) claims data (including individual claims pricing) sharing with plan sponsors (and their service providers). While this provision of the CAA has been effective since December 27, 2020, enforcement of the attestation requirement was delayed pending further guidance which was released in February of 2023.
Beginning in December of 2023, group health plans, including grandfathered and grandmothered plans, and health insurance issuers will need to annually attest that they are in compliance with the CAA’s gag clause prohibition. This requirement will not apply to excepted benefits (such as dental or vision plans and certain employee assistance programs), short-term limited-duration insurance, Medicare and Medicaid plans, CHIP, TRICARE, Indian Health Service Program, and Basic Health Program Plans. Additionally, the Departments have stated that they will be exercising enforcement discretion and will not require reporting for health reimbursement arrangements (HRAs), or other account-based plans.
Plans and issuers must submit an attestation of their compliance by December 31, 2023. These first attestations apply to the period from December 27, 2020, through the date the attestation is made. Reports will then be due annually by December 31 of each year. A self-funded plan sponsor may contract with a service provider or TPA to complete the attestation on the plan sponsor’s behalf. Fully-insured group health plans may also use their health insurance issuers for reporting but must get confirmation in writing that their insurer is reporting on their behalf. While this delegation removes much of the responsibility of reporting from the plan, the plan sponsor still remains legally responsible for compliance with the reporting deadlines. In light of this provision and the long delay in enforcement, plan sponsors should consider checking in with their service providers soon to determine if they will be filing the report on the plan’s behalf at the end of the year.
The reporting portal is now open and plans may submit their attestations here. CMS guidance on the gag clause prohibition, including Frequently Asked Questions, submission instructions, and the reporting template, is also available here. If you need assistance with gag clause prohibition compliance or any other CAA reporting requirements, please contact any member of the Bricker Graydon employee benefits team.
*Michaela is not yet licensed to practice law.