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Baldwin Bulletin

Updated Resources Available for Next Gag Clause Prohibition Compliance Attestation Due December 31, 2024

The Baldwin Group
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Updated: July 8, 2024
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2 minute read

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.

  • For fully insured health plans, an employer does not need to provide an attestation if the issuer for the plan provides the attestation.
  • For self-insured plans, employers can enter into written agreements with their TPA(s) to provide the attestation.  However, the legal responsibility remains with the health plan.  Not all TPAs will agree to submit the attestation so the employer will need to make sure to coordinate with all 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.

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