On May 24, 2024, the U.S. Department of Labor (“DOL”) issued updated annual submission instructions, a user manual, and an Excel template to assist health plans and health insurance issuers in submitting their annual attestation of compliance with the Consolidated Appropriations Act’s (“CAA”) gag clause prohibition. Section 4 of the updated instructions has a list of the changes made since 2023. These resources can be used to submit the next gag clause attestation which is due by December 31, 2024.
Employer Action Items
Employers should review their contracts with issuers, third-party administrators (“TPAs”) and other health plan service providers to confirm that they do not contain prohibited gag clauses. Also, employers should review what action they may need to take to comply with the gag clause attestation requirement, keeping in mind that such action may vary depending on whether the plan is fully insured or self-insured.
- Fully Insured Health Plans. The employer does not need to provide an attestation if the issuer for the plan provides the attestation.
- Self-funded Health Plans. Employers can enter into written agreements with their TPA(s) to prepare and submit the attestation. However, legal responsibility for performance of the attestation requirements nevertheless remains with the health plan sponsor. Not all TPAs will agree to submit the attestation, so employers should coordinate with their TPAs if there are multiple components to confirm that all required attestations are being filed.
Summary
The CAA prohibits health plans and issuers from entering contracts with health care providers, TPAs or other service providers that contain gag clauses. A gag clause is a clause that restricts the plan or issuer from providing, accessing, or sharing certain information about provider price and quality and de-identified claims.
Plans and issuers must annually submit an attestation of compliance with the CAA’s gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury (Departments). The Centers for Medicare & Medicaid Services (“CMS”) is collecting the attestations on behalf of the Departments. The first attestation was due by December 31, 2023, and subsequent attestations are due by December 31 of each following year.
The attestation due by this December should cover the period since the last attestation. For example, an attestation submitted on October 10, 2024, for a responsible entity (formerly referred to as a reporting entity) that submitted its attestation for the prior attestation year on November 30, 2023, would have an attestation period of December 1, 2023, to October 10, 2024, and an attestation year of 2024.
Additional Resources
- CMS’s Gag Clause Prohibition Compliance webpage; https://www.cms.gov/marketplace/about/oversight/other-insurance-protections/gag-clause-prohibition-compliance-attestation.
- Annual Submission Instructions: (https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/no-surprises-act/gag-clause-prohibition-compliance-attestation-annual-submission-instructions-2024.pdf).
- User Manual (https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/no-surprises-act/gcpca-user-manual-2024.pdf).
- Excel Template (https://www.cms.gov/marketplace/about/oversight/other-insurance-protections/gag-clause-prohibition-compliance-attestation).
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