By December 31, 2023, group health plans and health insurance issuers must submit an attestation to certify compliance with the "gag clause prohibition" under the Consolidated Appropriations Act of 2021 (CAA).

The CAA prohibits group health plans and health insurance issuers from entering into agreements with healthcare providers, third-party administrators, and other service providers that include contractual terms (gag clauses) that would directly or indirectly restrict the group health plan or health insurance issuer from sharing certain information with plan sponsors and participants, including: provider-specific cost and quality-of-care information; or de-identified claims data.

An example of a gag clause would be a provision in a third-party administrator's agreement that restricts or prevents disclosure of quality-of-care information because it is proprietary.

Plan sponsors should take the following steps to ensure compliance with the CAA's gag clause prohibition and attestation requirement:

  1. Review agreements with third-party administrators and other health plan service providers to ensure the agreements do not include prohibited language.
  2. If agreements with third-party administrators or health plan service providers include a gag clause, ensure amendments are adopted to remove the prohibited language.
  3. Make the attestation online via the Centers for Medicare & Medicaid Services Website no later than the due date (discussed below). A third party may submit the attestation on behalf of a plan, but note that the responsibility to comply with the attestation requirement remains with the plan. Therefore, it is imperative for plans to contact their insurance issuer or third-party administrator prior to the submission deadline if they intend to rely on the third party to meet the attestation requirement.
  4. Ensure that the attestation is made annually by December 31. As mentioned above, the first attestation is due December 31, 2023. The first attestation will cover the period from December 27, 2020, through the date of the first attestation. Moving forward, the CAA requires an annual attestation by December 31 of each subsequent year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.