Agency FAQs (Part 57) Provide Guidance on Gag Clause Prohibition for Health Plan Agreements, Including Annual Attestation Requirement

The DOL, HHS, and IRS have jointly issued FAQ guidance (Part 57) addressing provisions of the Consolidated Appropriations Act, 2021 (CAA, 2021) that prohibit group health plan agreements from precluding certain disclosures of provider-specific cost or quality-of-care information. The agencies previously indicated that, pending the issuance of guidance, plans and insurers were to implement the requirements prohibiting these “gag clauses” using a good faith, reasonable interpretation of the statute (see our Checkpoint article). The FAQs provide further guidance on the prohibition, including directions for submitting the annually required compliance attestation. Here are highlights:

• Gag Clause Prohibition (Q/As-1 through -4). The prohibition applies to agreements between group health plans or insurers and providers, third-party administrators (TPAs), or other service providers. The FAQs explain that a gag clause is a “contractual term that directly or indirectly restricts specific data and information that a plan or issuer can make available to another party.” Specifically, this includes restrictions on disclosing provider-specific cost or quality-of-care information, restrictions on electronic access to de-identified participant and beneficiary claim information (consistent with applicable privacy protections), and restrictions on sharing these types of data or information. Examples include a TPA’s attempts to restrict disclosure of provider rates because it considers them proprietary, or to allow access to provider-specific cost and quality-of-care information only at the TPA’s discretion. The FAQs note, without elaboration, that “reasonable restrictions” may be placed on public disclosure of this information. Even without an express restriction, provisions that operate to restrict access to or disclosure of applicable information violate the prohibition.
• Compliance Attestation (Q/As-5 through -12). The CAA, 2021 requires plans and insurers to annually attest to their compliance with the gag clause prohibition. The FAQs provide that the first Gag Clause Prohibition Compliance Attestation (GCPCA), covering the period from December 27, 2020 (or, if later, the effective date of the plan or insurance coverage) through the date of attestation, is due no later than December 31, 2023. Subsequent attestations are due each December 31. This requirement applies to health insurers offering group or individual coverage and to insured and self-insured group health plans, including ERISA plans, non-federal governmental plans, and church plans subject to the Code, regardless of whether the plans are grandfathered or grandmothered under the ACA. Attestation is not required for excepted benefits, and the agencies will not enforce the requirement against health reimbursement arrangements (HRAs) or other account-based plans. Self-insured plans may enter into an agreement with a service provider to submit the attestation, but the legal requirement remains with the plan. An insurer that provides administrative services to self-insured plans may submit a single attestation covering the insurer, its fully insured plans, and its self-insured plan clients; the FAQs recommend that the insurer coordinate with each plan to avoid duplication. Attestations are submitted through CMS’s Health Insurance Oversight System (HIOS). Detailed instructions, a user manual, and a reporting template are provided on the GCPCA webpage and are also linked in an EBSA bulletin.
• Reporting Violations (Q/A-13). Information is provided on how to report suspected violations of the gag clause prohibition.

EBIA Comment: The gag clause prohibition took effect upon enactment of the CAA, 2021 in December 2020, so problematic provisions should already have been excised from agreements. In preparation for the first attestation deadline, plan sponsors and insurers should review the instructions and technical guidance—and confirm that no prohibited provisions remain in their agreements. For more information, see EBIA’s Self-Insured Health Plans manual at Section XXIII.B (“Contracting With Service Providers”). See also EBIA’s Health Care Reform manual at Section XXXVII.E (“Surprise Medical Billing Transparency Disclosures”), EBIA’s Group Health Plan Mandates manual at Section XIII.B (“Patient Protections”), and EBIA’s ERISA Compliance manual at Section XXX.E (“Content of the TPA Agreement”).

Contributing Editors: EBIA Staff.