Benefits Buzz

Gag Clause Prohibition Compliance Attestation Update

Posted on November 29th, 2023

There is a new annual compliance requirement that applies to “plans” and “issuers.” For the avoidance of doubt, the term plan means employer and the term issuer means health insurance carrier.

Each year, employers and health insurance carriers must submit a gag clause prohibition compliance attestation. This will be due by December 31st of each year with the first attestation due by December 31, 2023. So, what does this really mean?

A gag clause can generally be defined as a provision in a contract with a medical provider or group of medical providers that prohibits the sharing of healthcare cost information or quality of care information. For example, it would be considered a gag clause if a health insurance carrier had a contract in place with a doctor that included a provision which prohibited the health insurance carrier from disclosing cost information on a publicly available website.

The Consolidated Appropriations Act of 2021 now prohibits the use of gag clauses in any provider contract.This is in an effort to create more transparency around healthcare costs and quality of care. Employers and/or health insurance carriers must attest that the network of providers tied to their health plan(s) do not include any gag clauses.

For fully insured health plans, the law indicates that both the employer and health insurance carrier need to submit an annual attestation confirming there are no gag clauses in any provider contract. However, the Department of Labor (DOL) issued guidance which indicates the employer does not need to submit an attestation so long as the health insurance carrier submits an attestation on their behalf.

For self-funded health plans, the employer is responsible for making the attestation. However, the employer may rely on the third-party administrator or benefits administrator to submit an attestation on their behalf. The employer assumes liability for the timely and accuracy of attestation submissions in this scenario.

Provider contracts are typically managed by the health insurance carrier or third-party administrator. Employers who need to submit an attestation will generally need to rely on assurances from the health insurance carrier or third-party administrator that there are no gag clauses included in any provider contract.

If an employer needs to submit an attestation, there is some good news. The attestation should only take 5-10 minutes to complete. It is an online attestation form that can be accessed here. A username and password will need to be created to submit the attestation.

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