Company FAQs About the Gag Clause Prohibition Compliance Attestation
Companies offering health plan benefits to their employees are now subject to additional regulations and reporting. Here’s what you need to know to protect your team members and maintain compliance with standards.
What is the Gag Clause Prohibition Compliance Attestation?
In the past, insurance plans were able to use gag clauses within health insurance policies to prevent patients from identifying specific information associated with the costs of their healthcare services.
The Consolidated Appropriations Act, 2021 (CAA) introduced the Gag Clause Prohibition Compliance Attestation provision, which was designed to eliminate the use of these gag clauses and thereby ensure that patients have full access to the information they need to make informed decisions about their care—and more specifically, the cost of their care.
Practically, the Gag Clause Prohibition Compliance Attestation’s provisions prohibit health plan sponsors and plan issuers from having any agreements with a healthcare provider, a network, an association of providers, a third-party administrator or any other service provider that prevent the disclosure of information about the quality of care and cost of plans.
Organizations must now formally acknowledge that they don’t include, endorse or enforce any gag clauses within the policies they provide to employees or the agreements they maintain with insurance providers.
The plan and plan sponsors are also barred from restricting the plan or issuer from sharing information with a business associate, as long as they do so in accordance with the Medical Health Insurance Privacy Regulations under the Health Insurance Portability and Accountability Act (HIPAA).
Who Does the Gag Clause Prohibition Compliance Attestation Provision Apply To?
Any employer/entity offering a group health plan to its employees is subject to the Gag Clause Prohibition Compliance Attestation. This attestation also includes any plans that may be considered grandfathered, church-based plans subject to the IRS Code and non-federal governmental plans.
The Gag Clause Prohibition Compliance Attestation applies to all health, prescription and behavioral health/mental health benefits providers. It does not apply to dental, vision or account-based health plans like FSAs, HSAs or HRAs.
What Are the Gag Clause Prohibition Compliance Attestation Requirements?
To be in compliance with the Gag Clause Prohibition Compliance Attestation, companies must certify that they abide by the provisions set forth by the following bodies and their codes:
- Internal Revenue Code Section 9824
- Employee Retirement Income Security Act (ERISA) Section 724
- Public Health Service (PHS) Act Section 2799A-9
- Title II (Transparency) of Division BB of the CAA
What Do Companies Offering Group Health Insurance Need To Do?
Health plan sponsors are now required to respond annually to certify that they are compliant with the Gag Clause Prohibition Compliance Attestation. Here are some steps your entity should take:
- Reach out to health insurance providers to confirm that their contracts do not contain prohibited gag clauses.
- Determine who will submit the attestation. While most fully insured providers (such as United Healthcare, Blue Cross Blue Shield, etc.) submit on the health plan sponsor’s behalf due to their own responsibility to report, many self-funded plans remain responsible for filing their own Gag Clause Prohibition Compliance Attestation. It’s important for plan sponsors to reach out proactively to their carrier or third-party administrator to confirm who will file the attestation, ensuring that their company is covered.
- Document all agreements regarding attestation with any health insurance carrier and the third-party administrator for protection in case there is any question about compliance.
- If a plan sponsor submits its own attestation, assign an individual to complete and document every step of this task. Instruct the individual submitting the attestation to become familiar with all available CMS resources.
- Submit the attestation electronically.
What Is the Deadline for Compliance With the Gag Clause Prohibition Compliance Attestation?
The first attestation date to satisfy the Gag Clause Prohibition Compliance Attestation responsibilities is due December 31, 2023, attesting to compliance as of December 27, 2020, when the regulation went into effect.
How Are Healthcare Providers Assisting?
Some health providers are submitting attestations on behalf of plan sponsors.
For example, United Healthcare and Blue Cross Blue Shield have asked for attestation signatures from employers by October 31, 2023. This early compliance allows the providers to handle the attestation on employers’ behalf if they are fully insured, streamlining the process and ensuring compliance long before the deadline to avoid last-minute concerns.
However, it’s important to communicate with your organization’s health insurance providers to confirm their specific deadlines.
Are There Penalties for Failure to Submit Attestation?
Companies that fail to file may experience penalties such as a $100-per-day excise tax in accordance with the respective IRS Code or a civil penalty under ERISA.
Learn More About Your Company’s Gag Clause Prohibition Compliance Attestation
The Gag Clause Prohibition Compliance Attestation is new and complex with many moving parts. However, it’s vital to get it right to ensure full transparency to healthcare consumers.
Connect with our Warren Averett team to learn more about achieving and maintaining full Gag Clause Prohibition Compliance Attestation compliance to protect your health plan participants and your organization.
