Gag Clause Attestation Guidance Released

The Internal Revenue Service (IRS), Department of Labor (DOL), and Department of Human Services (HHS) [collectively, “the Departments”] have released guidance regarding the requirement for employer sponsored health plans and health insurance carriers to submit an attestation of compliance with the gag clause prohibitions contained in The Consolidated Appropriations Act (CAA), 2021.

The first attestation must be submitted by December 31, 2023. Most employers will be able to rely on their carrier or third-party administrator (TPA) to submit the required attestation.

Background

The CAA, 2021, amended the Employee Retirement Income Security Act (ERISA), the Public Health Services Act (PHSA), and the Internal Revenue Code to prohibit group health plans and health insurance carriers (referred to as “issuers” in the rules) from entering into agreements with providers, TPAs, or other service providers that include language that would constitute a “gag clause.” A gag clause is contractual language that contains any of the following:

• restrictions on the disclosure of provider-specific cost or quality of care information or data to referring providers, the plan sponsor, participants, beneficiaries, or enrollees;
• restrictions on electronic access to de-identified claims and encounter information or data for each participant, beneficiary, or enrollee (consistent with the privacy regulations included in the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (FINA), and the Americans with Disabilities Act (ADA); and
• restrictions on sharing information or data described in (1) and (2), with a business associate (as defined by HIPAA privacy regulations).

The gag clause prohibition requirements apply to virtually all employer-sponsored health plans, including fully insured and self-insured group health plans subject to ERISA, non-Federal governmental plans, church plans, and grandfathered plans.

The Attestation Requirement

Plans and issuers must annually submit an attestation of compliance with these requirements to the Departments. The gag clause prohibitions became effective December 27, 2020 (the date of enactment of the CAA); however, the attestation requirement was delayed pending release of further guidance. With the release of this guidance the first gag clause compliance attestation (“Attestation”) is now due by December 31, 2023. Subsequent attestations are due by December 31 of each year thereafter.

Health Reimbursement Arrangements (HRAs), Health Flexible Spending Accounts (HFSAs), and other account-based plans are exempt from the attestation requirement.

Who Must Complete the Attestation on Behalf of Employer Sponsored Plans?

Employers typically rely on their carrier, TPA, or network to contract with medical providers to provide services to participants in the health plans offered to employees. The Departments recognize that employers rarely directly enter into agreements with health care providers, so the guidance makes it clear that if specific requirements are met, employers can rely on their carrier or TPA to submit the Attestation on behalf of their employer-sponsored plans.

Self-insured Employer Plans

Self-insured plans may satisfy the requirement to provide an Attestation by entering into a written agreement under which the plan’s service provider(s) [such as a TPA] will submit the required Attestation. The guidance does not define what constitutes an acceptable written agreement.  However, the Departments point out that if a self-insured plan chooses to enter into such an agreement with the plan’s service provider(s), the legal requirement to provide a timely Attestation remains with the employer’s plan.

Fully Insured Employer Plans

Since carriers are required to submit an Attestation regarding the plans they offer, employers may generally rely on the carrier to submit the required Attestation. While liability for the submission rests with the carrier, employers should still seek assurance from their carrier that the Attestation is being submitted.

Employer Direct Provider Contract Arrangements

Some employers enter direct contracts with providers. In these cases, the employer may need to take responsibility for submitting the Attestation on behalf of their plan.

How it the Attestation Submitted?

The Departments have launched a website for submitting the Attestation and have issued instructions, a system user manual, and an Excel reporting template for plans and issuers to submit the required attestation. Plans and issuers should use the website at https://hios.cms.gov/HIOS-GCPCA-UI to satisfy the requirement to submit an annual Attestation.

Summary

Most employers will need to rely on their vendor (health insurance carrier or TPA) to comply with the rules. While fully insured employer will be able to rely on carriers to submit the attestation on behalf of their plan, this is another health cost transparency-related compliance requirement (similar to the posting of the machine-readable cost files and prescription drug cost reporting) where it is a bit more complicated for self-insured employers.

The Departments have made it clear that if a self-insured employer contracts with their vendor for assistance, the employer is still liable for the compliance of their plan and will need to make sure their vendor is meeting the requirements.

More information, including links to the guidance, submission instructions for entities required to submit the attestation, and more, can be found at https://www.cms.gov/cciio/programs-and-initiatives/other-insurance-protections/gag-clause-prohibition-compliance.

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.