By: HUB’s EB Compliance Team

On February 23, the U.S. Departments of Health and Human Services (“HHS”), Labor and Treasury (the “Departments”) issued guidance on group health plans and insurers attesting annually they are in compliance with the gag clause prohibition enacted under the Consolidated Appropriations Act, 2021 (“CAA”). The attestations will be required by December 31 of each year, starting this year.

Background

The gag clause prohibition was effective December 27, 2020, the date the CAA was enacted. In general, the gag clause prohibition under the CAA says a plan or insurer may not enter into an agreement with a health care provider, network or association of providers, third party administrator (“TPA”), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan from either:

  • providing provider-specific cost or quality of care information or data through a consumer tool or any other means, to referring providers, the plan sponsor, participants, or individuals eligible to become participants; and
  • electronically accessing de-identified claims and encounter information or data.

The goal of the provision is to allow group health plans and insurers to have access to, and be able to publish, cost and quality information as part of the CAA’s broader push for transparency in health coverage.

The Attestation

Plans and insurers must annually submit to the Departments an attestation that the plan/insurer is in compliance with the gag clause prohibition. The recent guidance packaging included several items:

  • A set of Frequently Asked Questions (FAQs) providing guidance on the gag clause prohibition and attestation requirement;
  • A website for plans and insurers to use for submitting attestations, which is a module within the Health Insurance Oversight System (the same system used for RxDC reporting) and a related user manual;
  • Instructions on how to submit the attestation; and
  • A template for entities to use when submitting an attestation on behalf of multiple plans.

Notably, the FAQs provide guidance regarding what types of provisions constitute a gag clause and provide some helpful examples (including cases in which a TPA asserts rate information is proprietary).

Who is Required to Attest?

The FAQs also confirm which entities are required to submit an attestation. Specifically:

  • health insurance issuers offering group health insurance coverage;
  • fully-insured and self-insured group health plans, including ERISA plans, non-Federal governmental plans, and church plans subject to the tax code; and
  • health insurance issuers offering individual health insurance coverage, including student health insurance coverage and individual health insurance coverage issued through an association.

In particular, grandfathered plans and grandmothered plans are required to attest. However, plans offering only excepted benefits or account-based plans (such as health reimbursement arrangements or health FSAs) are not required to attest.

The FAQs do allow a TPA (including an insurer acting as a TPA, such as under an administrative services only, ASO, arrangement) to attest on behalf of self-insured plans. Like with the RxDC reporting, if a third party attests on behalf of a group health plan, the legal responsibility for the attestation still lies with the plan. As a practical matter, a TPA or ASO is better positioned to make this attestation than the plan sponsor since they typically are the ones signing the provider contracts. While they may require some information or certification from certain plans, it should be easier for them to make this attestation than it was to do the RxDC reporting.

The FAQs clarify that the first attestation is due no later than December 31, 2023, covering the period beginning December 27, 2020, or the effective date of the applicable plan (if later), through the date of the attestation. Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter.

Takeaways

Presumably most employers will not want to make this attestation themselves since the TPAs and ASOs will have the information on the gag clause requirements with respect to their networks. Therefore, employers should engage in conversations with their carriers, TPAs, and ASOs in the not too distant future to determine how they will satisfy this requirement.

Employers that want to take care of this themselves should consult the instructions and user manual above and get ready to make this attestation themselves. To the extent they are using a TPA or ASO, they will likely need to coordinate with that service provider and collect information from them regarding the filing.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

NOTICE OF DISCLAIMER

Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only, and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.