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Attestations for Gag Clause Prohibition Compliance
Due to CMS by December 31, 2024
The Departments issued joint FAQ Guidance related to compliance with the prohibition of “gag clauses” as required under the Consolidated Appropriations Act of 2021 (CAA). Specifically, the rules require plans and issuers to submit a compliance attestation no later than December 31, 2024, and annually each year by December 31st.
WHO THIS APPLIES TO:
• Large employers with fully-insured and self-funded health plans
• Small employers with fully-insured and level-funded health plans
Exempt:
• Account-based plans such as FSA, HRA, and ICHRA
• Plans offering only excepted benefits, such as standalone dental/vision, on-site clinic, retiree-only, fixed indemnity, EAP, etc.
What is a gag clause and what is prohibited?
The CAA prohibits group health plans and insurance carriers from entering into agreements with providers, TPAs, or other service providers whose agreements include language that would constitute a “gag clause,” specifically:
- Restrictions on the disclosure of provider-specific cost or quality of care information or data to referring providers, the employer plan sponsor, participants, beneficiaries or enrollees, or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage;
- Restrictions on electronic access to de-identified claims and encounter information or data for each participant, beneficiary, or enrollee upon request and consistent with the privacy regulations promulgated pursuant to section 246(c) of HIPAA, GINA, and the ADA; and
- Restrictions on sharing information or data described in (1) and (2), or directing that such information or data be shared with a business associate, as defined in 45 CFR 160.103, consistent with applicable privacy regulations.
GO DEEPER:
https://www.cms.gov/files/document/aca-part-57.pdf
For example, if a contract between a TPA and a group health plan states that the plan pays providers at rates designated as “Point of Service Rates,” but the TPA considers those rates proprietary and therefore includes language in the contract stating that the plan may not disclose the rates to participants, that language prohibiting disclosure is considered a prohibited gag clause (i.e., not allowed).
As another example, if a contract between a TPA and a plan says that the employer’s access to provider-specific cost and quality of care information is only at the discretion of the TPA, that contractual provision is considered a prohibited gag clause.
Self-insured employer plan sponsors and fully-insured carriers must ensure that their agreements with health care providers, networks or associations of providers, or other service providers offering access to a network of providers do not contain these or other provisions that violate the prohibition on gag clauses. However, a health care provider, network or association of providers, or other service provider may place reasonable restrictions on the public disclosure of this information.
What attestation is required?
In addition to ensuring agreements do not contain such gag clauses, all plans and issuers are required to submit a Gag Clause Prohibition Compliance Attestation (GCPCA) directly to CMS online at https://hios.cms.gov/HIOS-GCPCA-UI no later than December 31, 2024, and each year thereafter.