Dec 21, 2023

First “Gag Clause Attestation” due by December 31, 2023

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    First “Gag Clause Attestation” due by December 31, 2023

    This is a reminder that the first “Gag Clause Attestation” is due by December 31, 2023! Learn what you need to know here.


    We want to remind you that the first “Gag Clause Attestation” is due by December 31, 2023!


    What It’s About

    The Consolidated Appropriations Act of 2021 (CAA) prohibited group health plan issuers from entering into agreements with service providers, TPAs, or other providers that include language that would constitute a “gag clause.” A gag clause is a contract provision that restricts specific date and information that the Plan can make available to another party. An example of now-prohibited language would be a clause in the contract with the insurance carrier whereby the carrier places restrictions on the disclosure of provider-specific cost or quality of care information or data to referring providers or the Plan Sponsor (or participants/enrollees).

    This prohibition (and attestation-filing) applies to all employer-sponsored health insurance plans except for HIPAA-excepted benefits (e.g., stand-alone dental, vision, Retiree-only plans, and most healthcare FSAs) or account-based programs (e.g., HRAs). There is no exemption for non-ERISA (e.g., Church or Governmental) or ACA-Grandfathered Plans.

    While the law itself became effective December 27, 2020 (and the actual gag clause prohibition took effect August 20, 2021), the first attestation of compliance is due not later than December 31, 2023. This is an annual reporting requirement; however, the initial attestation may cover the 2021, 2022, and 2023 calendar years.

    The legal onus is on the Plan Issuer (i.e., insurance carrier for fully-insured Plans) to submit the attestation to the Departments; however, since employers that sponsor self-funded Plans technically function as a Plan Issuer themselves, they may wish to engage their Plan’s TPA/vendor to determine if the TPA/vendor will submit the attestation on their Plan’s behalf.


    Action Steps for Employers

    1. Determine which of your component plans are subject to this requirement.
      • Attestation is required for major medical plans (including those with integrated dental and vision components), as well as “carved out” prescription drug benefit plans, telehealth-only plans, and Employee Assistance Programs that offer medical care.
    2. For fully-insured Plan Sponsors: while no direct action should be required on your part – again, the insurance carrier should be filing on your behalf – you should obtain a written confirmation from the carrier that it has (or will) submit the attestation in a timely manner on your Plan’s behalf. Please retain this confirmation in your records.
    3. For self-funded Plan Sponsors: you will need to contact your TPAs/vendors to determine if they will report on your Plan’s behalf. If so, you will want to obtain written confirmation from them as detailed above; if not, then you will need to report on each subject Plan that you sponsor. Please see the step-by-step-reporting guidance here, provided from our partners at Benefit Comply, LLC.

    For more detailed information and technical guidance, please visit the CMS website dedicated to this process.

    Your M&G Account Manager would be happy to assist you with any questions you may have regarding this matter; please contact us to schedule a discussion.

    We look forward to continually serving you!

    While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept liability for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it. This publication is distributed on the understanding that the publisher is not engaged in rendering legal, accounting or other professional advice or services. Readers should always seek licensed professional advice before entering into any commitments.

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