Heads Up To Group Health Plans: December 31 Gag Clause Attestation Deadline Approaches

The Consolidated Appropriations Act of 2021 prohibits group health plans from agreeing to avoid making certain disclosures of provider-specific cost or quality-of-care information. This is referred to as the gag clause prohibition. The Act also requires health plans and insurers offering group health insurance coverage to attest annually that they are in compliance with the gag clause prohibition. The attestation requirement applies to health insurers offering group or individual coverage and to insured and self-insured group health plans, including ERISA covered plans, non-federal government plans, and church plans. The Centers for Medicare and Medicaid Services (“CMS”) collects the attestations on behalf of the Treasury, Labor, and Health and Human Services Departments. Group health plans and their issuers submit their annual attestation through a CMS website, at https//hios.cms.gov/HIOS-GCPCA-UI, linked here. The first attestation must be submitted on or before December 31, 2023 for plan years 2021, 2022 and 2023. Beginning in 2024 the attestation must be submitted annually by December 31.

A prohibited gag clause is one that directly or indirectly restricts the plan or the issuer from providing, accessing, or sharing information such as provider-specific price; quality of care; electronic access to de-identified claims; or data that refer to providers, participants or those eligible to participate. Gag clauses might be found in agreements between a plan or issuer and a health care provider, a network or association of providers, a third-party administrator, or another service provider offering access to a provider network. Reasonable restrictions on the public disclosure of this information are permitted. More details about the mandatory attestation can be found here.

If you have any questions or concerns regarding compliance with the gag clause attestation requirement or whether your agreements contain prohibited gag clauses, please reach out to Partners William F. Megna, Esq. via email here, or to Patrick W. McGovern, Esq. via email here.