Brokers and TPAs Need to be Aware: The December 31, 2024 Gag Clause Attestation Submission Deadline Nears

Brokers and TPAs may have the obligation to complete the Gag Clause Prohibition Compliance Attestation Submission (“Attestation”) on behalf of their self-funded group health plan clients, pursuant to an agreement with their clients. Although plans are responsible for filing the Attestation, TPAs and brokers may file on behalf of their clients.

What is a Gag Clause?

A gag clause is a contractual term that directly or indirectly restricts specific data and information that a health plan or issuer can make available to another party.

Prohibition on Gag Clauses:

The Consolidated Appropriations Act of 2021 (“CAA of 2021”) prohibits group health plans from entering into agreements with health care providers, including networks or associations of providers, TPAs, or other service providers, that would directly or indirectly restrict a plan from providing provider-specific cost or quality of care information or data to referring providers, the plan sponsor, participants, beneficiaries, or enrollees, or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage. If a contract between a TPA and a group health plan states that the plan will pay providers at rates designated as “Point of Service Rates,” but the TPA considers those rates to be proprietary and therefore includes language in the contract stating that the plan may not disclose the rates to participants or beneficiaries, that language prohibiting disclosure would be considered a prohibited gag clause.

Filing Deadline:

The rules require plans to annually submit to the DOL, HHS, and IRS (“Agencies”) an Attestation that the plan complies with the prohibition, which is done by completion of the webform located at the web address below.  The first Gag Clause Prohibition Compliance Attestation was 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. The rules allow brokers, TPAs and other service providers to submit the Attestation on the plan’s behalf.

Submission Instructions

The Gag Clause Prohibition Compliance Attestation can be submitted via online form on the CMS website. The annual attestation will satisfy the parallel requirements under the Code, ERISA, and the PHS Act, as applicable. Please also visit CMS to review instructions and a system user manual for submitting Attestations, as well as an Excel template for providing information required as part of the Attestation. Plans that fail to submit their Attestation by the deadline may be subject to enforcement action.

The CMS submission page details what to expect for submission and attestation steps:

1. Provide responses regarding the Submitter, Attester, and Reporting Entity on the webform.
2. If attesting for multiple Reporting Entities, complete the Reporting Entity Excel Template, then save it as a tab-delimited text format, and upload it to the webform.
3. Review the information you provided. If the Attester is a different person than the Submitter, the Attester accesses the GCPCA webform to review the information and attest.
4. The Attester electronically signs to attest.
5. Submit the attestation.

Additional Information

The Agencies have jointly issued FAQ guidance (Part 57) addressing provisions of the CAA of 2021 that prohibit gag clauses. You can read more on this here- FAQ Documents.

Still asking yourself “what is the gag clause attestation”?

Contact the 6 Degrees Health compliance team today for more information.