Unmuzzled: Time to Attest That No Gags Apply

The Departments of Labor, Health and Human Services, and the Treasury have jointly issued guidance on the requirement in the CAA), that health plans and insurers attest to their compliance with the prohibition against gag clauses. The CAA prohibits plans and insurers from entering into agreements with health care providers, third-party administrators, and other service providers that would directly or indirectly restrict the plan or insurer from sharing with the plan sponsor, plan participants, and certain others cost and quality information that is specific to providers or from electronically accessing claims and encounter information that is specific to (de-identified) enrollees.

The CAA requires plans and insurers to attest annually to their compliance with this provision, and the rule applies to all agreements entered into on or after the date that the CAA was enacted (December 27, 2020). However, there has been no mechanism to make the attestation until now.

The new guidance includes applicable forms, instructions for the electronic submission of the attestation, and frequently asked questions and answers that provide additional guidance. The guidance provides that:

• The first attestation must be made no later than December 31, 2023, and must cover the period between December 27, 2020 and the date of the submission.
• Beginning in 2024, attestations must be made each year, by December 31.
• Excepted benefits (like most dental, vision, and employee assistance plans), short-term limited duration insurance, Medicare plans, and certain other arrangements are exempt from the attestation rule.
• A non-enforcement policy will apply to health reimbursement arrangements (HRAs) and other account-based plans, although they may be integrated with other plans that need to comply.
• Plans may arrange with insurers and third party administrators to attest on their behalf, but self-funded plans will remain legally liable for any failure by a vendor to make the filing.
• Reporting entities may authorize an appropriate individual to make the attestation on the organization’s behalf.
• Failure to file could result in enforcement action, which may a $100 per day excise tax under the Internal Revenue Code or civil penalty under ERISA.

The new guidance describes how the attestation may be submitted electronically. As with many CAA requirements, health plans and insurers should consider contracting with insurers and administrative service vendors to complete the attestation on their behalf.

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