Consumer Access to Healthcare Cost & Quality Gag Clause Attestations Due by December 31st

Employers that sponsor group health plans must, by year end, file with the Centers of Medicare and Medicaid (CMS) to confirm the absence of a “gag clause” in their employee health insurance plans. This filing, the first Gag Clause Prohibition Compliance Attestation (Attestation), is due by December 31st, and must cover the period beginning December 27, 2020, through the date of the Attestation. Subsequent Attestations must be submitted by December 31st of each following year.

Understanding the Gag Clause Prohibition

The gag clause prohibition aims to increase transparency in healthcare pricing by prohibiting plan sponsors from including 'gag clauses' in their provider agreements. These clauses prevent the release of provider specific information related to price and quality of care to consumers and others, which hinders consumers' ability to make informed healthcare choices. The gag clause prohibition is also intended to drive down the costs of health care by promoting fair competition among healthcare providers. 

Scope of the Gag Clause Prohibition: Applicable Plans

An Attestation must be submitted for fully insured and self-insured group health plans, including ERISA, non-federal governmental, and church plans. An Attestation must also be submitted for third-party administrators (TPAs), pharmacy benefit managers, behavioral health managers, and any provider offering access to a network of providers. An Attestation is not required for non-health benefits (e.g., accident only or disability coverage), limited benefits offered separately from traditional group health plans (e.g., dental and vision), account-based plans (e.g., health reimbursement accounts), or supplemental health benefits.

Filing the Attestation: Compliance Guidance and Resources

The Attestation must be submitted electronically on the CMS website. The submission portal, a User Manual, Instructions for submitting the Attestation, and FAQs may be found here.

While plan sponsors are legally responsible for filing the Attestation, federal guidance allows delegation. Employers that sponsor self-insured group health plans may delegate the filing of the Attestation through a written agreement with a service provider or TPA. Employers that sponsor fully insured group health plans can delegate the filing to the insurance provider. A written agreement between the plan sponsor of a fully insured group health plan and the insurance provider for submitting the Attestation is not required but is recommended. An employer that sponsors both fully and self-insured group health plans can submit a single Attestation.

Next Steps

• Employers sponsoring fully insured group health plans should contact their insurance providers and request that they submit the Attestation on their behalf. The insurer’s agreement to submit the Attestation on behalf of the plan sponsor should be made in writing.
• Employers sponsoring self-insured group health plans should work with their TPA (s) and/or legal counsel to review provider agreements for prohibited gag clauses and obtain a written statement of compliance from each provider.  Existing agreements may require an amendment to remove prohibited gag clauses.
• Plan sponsors should use the Attestation process to review how their providers share price and quality of care information with plan participants.  

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Failure to comply with the attestation requirement may result in penalties and other regulatory consequences. Employers should consult guidance provided on the CMS website and seek legal counsel to ensure comprehensive compliance with the gag clause prohibition.