Gag Clause Attestations:

Agency FAQs

This week, the Departments of Labor, Health and Human Services, and the Treasury, along with the Office of Personnel Management jointly issued a set of FAQs addressing, amongst other things, compliance with the gag clause prohibition and associated attestation requirements.

The FAQs clarify that the gag clause prohibition requirements apply beyond a plan’s direct contract with a carrier, TPA or other service provider to any “downstream agreements” that the carrier, TPA or other service providers may enter to administer the plan’s network.

Plan sponsors will be expected to add clauses to contracts with carriers, TPAs and other service providers prohibiting them from entering downstream contracts that contain gag clauses.

The FAQs also provide further clarification, including examples, on contract provisions restricting access to de-identified information that is prohibited by the gag clause prohibition.

For future attestations covering group health plan contracts in place as of January 14, 2025 and later, plan sponsors must attest to compliance in accordance with the updated guidance or specify any non-compliance on the attestation form submitted.

This guidance is found in FAQs #6-9 here

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information. This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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