Gag-Clause Attestations Due by End of Year

As we previously reported, the Departments of Labor, Health and Human Services, and the Treasury 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 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 will often 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 be a $100-per-day excise tax under the Internal Revenue Code or civil penalty under ERISA.
• The attestation is to be submitted electronically.

Some plan sponsors have received mailings from vendors certifying their compliance with the anti-gag rules. At least for self-funded plans, the vendors seem unwilling to assume responsibility for making the attestation on the plan’s behalf. Absent a contractual commitment from a vendor to meet the attestation requirement, plan sponsors should make sure that they are in a position to make the attestation and submit the attestation form by the December 31 deadline.

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