What You Need to Know About Gag Clause Attestation

Written by Rick Labian | Nov 28, 2023 4:26:39 PM

2.5 minute read

The Consolidated Appropriations Act of 2021 (CAA) imposes restrictions on Group Health Plans (GHPs) and insurers, preventing them from entering into agreements that limit or hinder the sharing of information permitted under HIPAA, GINA, and the ADA. These agreements should not restrict GHPs from sharing specific cost and quality details with participants and should also not impede the sharing of claim data with GHPs and their service providers. These requirements apply to all contracts entered into or after 12/27/2020.

Employers and insurers must submit an Attestation of compliance to the Centers for Medicare & Medicaid Services on an annual basis. The first Attestation is due December 31, 2023, for the period of December 27, 2020, through the date of Attestation and annually by December 31st thereafter. Although the effective date of the prohibition of the gag clauses was December 27, 2020, the reporting requirement was delayed.

All GHPs should submit the Attestation of Compliance. This includes fully and self-insured groups, ERISA plans, grandfathered plans, and non-federal governmental plans regardless of group size. See the chart below for more details on which plans are applicable.

Applies To	Does Not Appy To
Fully Insured	Account based plans ICHRAs, HRAs, FSAs, or HSAs
Self-Funded and Level-Funded	Administration only plans Stop-loss and COBRA administrators
Integrated Dental and Vision Plans	HIPAA excepted Benefits Standalone dental / Vision / Long-term care Hospital indemnity / fixed indemnity plans Specified disease plans On-site medical clinics Accident only plans Disability plans Short-term, limited duration plans
Standalone & Carve-out Benefits Prescription drugs Behavior health Telehealth Direct program care Transplant programs Specialty Rx	Retiree-only plans
EAPs that provide significant medical care More than limited, short-term outpatient counseling
Wellness plans considered to be group health plans

Employers are responsible for complying with the legal requirements for maintaining compliance with their group health plans. This includes both insurers and employers being subject to Attestation compliance. While insurers have the option to submit an Attestation of compliance for fully insured plans, it is not mandatory. However, it is worth noting that most insurers have chosen to submit the Attestation of compliance on behalf of their fully insured GHPs.

For self-funded group health plans, employers are required to submit an Attestation of compliance to CMS. However, TPAs (and other service providers) are exempt from gag clause prohibition or Attestation compliance requirements. In some cases, TPAs may agree to submit the Attestation for the GHP. It is important for employers to have confirmation from their service providers to ensure compliance.

Failure to comply may result in an excise tax penalty of $100 per day. For more information, please contact your Employee Benefits Consultant.

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