Departments Post FAQs on Prohibited Gag Clauses on Price and Quality Information in Provider Agreements

Published February 24, 2023

 

 

Group health plans and health insurance issuers offering group or individual health insurance coverage must annually submit a Gag Clause Prohibition Compliance Attestation (GCPCA) to the Department of Health and Human Services (HHS), which is collecting the attestations on behalf of the Departments of Labor, HHS, and the Treasury (the Departments). The GCPCA is an attestation of compliance with Internal Revenue Code section 9824, Employee Retirement Income Security Act (ERISA) section 724, and Public Health Service (PHS) Act section 2799A-9, as applicable. These provisions generally prohibit plans and issuers from entering into certain provider agreements that would prevent the disclosure of cost or quality of care information or data, and certain other information to active or eligible participants, beneficiaries, enrollees, plan sponsors, or referring providers, or restrict the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations. A health care provider, network or association of providers, or other service provider may place reasonable restrictions on the public disclosure of this information. These provisions became effective December 27, 2020. 

On August 20, 2021, the Departments issued FAQs Part 49 stating that this part of the law is self-implementing and that the Departments did not expect to issue regulations pertaining to gag clauses at that time. The FAQ clarified that, until any further guidance is issued, plans and issuers are expected to implement the requirements prohibiting gag clauses using a good faith, reasonable interpretation of the statute. The FAQ further stated, however, that the Departments intend to issue guidance explaining how plans and issuers should submit their attestations of compliance, and that the Departments anticipate that they would begin collecting attestations in 2022. Concurrently with these FAQs, the Departments are launching a website for submitting attestations. 

The following entities are required to submit a Gag Clause Prohibition Compliance Attestation:
  • Health insurance issuers offering group health insurance coverage
  • Health insurance issuers offering individual health insurance coverage, including student health insurance coverage and individual health insurance coverage issued through an association
  • Fully-insured and self-insured group health plans, including ERISA plans, non-federal governmental plans, church plans subject to the  Internal Revenue Code.
These requirements apply regardless of whether a plan or coverage is considered to be a grandfathered or grandmothered health plan. 

Entities that are not required to attest include:
  • Plans or issuers offering only excepted benefits
  • Issuers offering only short-term, limited-duration insurance.

FAQs Part 57 include:

  • What is a “gag clause”? 
  • What are the prohibitions?
  • What is the Gag Clause Prohibition Compliance Attestation?
  • How should plans and issuers submit an attestation?
  • Various scenarios when an entity may attest to compliance on behalf of a group health plan or insurer.
  • What is the due date for the Gag Clause Prohibition Compliance Attestation?
The first Gag Clause Prohibition Compliance Attestation is due no later than December 31, 2023, covering the period beginning December 27, 2020, or the effective date of the applicable group health plan or health insurance coverage (if later), through the date of attestation. 
Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter.
Which entities are required to submit?

 

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