Signed, Sealed, Delivered … Have You Completed Your Plan’s “No Gag Clauses” Attestation?

by Becky Achten

One of the many benefits-related provisions in the Consolidated Appropriations Act of 2021 prohibits the use of “gag clauses” in group health plan agreements. Before this law, medical plan service agreements would often include provisions preventing the employer from sharing data like pricing and health plan outcomes available to another party. Hopefully employers have worked to make sure that there are no such clauses in their agreements. But there’s one more step on the compliance ladder. Beginning in 2023, plans must annually attest to their compliance with the gag clause prohibition.

All group health plans, whether fully insured or self-insured, are required to submit an attestation to CMS.gov confirming that the plan has been compliant with the prohibition on gag clauses since December 27, 2020. This must be completed by December 31, 2023, and annually thereafter.

Plans are permitted to contract with their TPA or carrier to complete the gag clause reporting on behalf of the plan. Employers should coordinate with their TPAs and carriers to make sure that their attestation is complete. Employers might also consider amending services agreements to make clear who has the responsibility to make the attestation.