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?
Additional Information
- FAQs Part 57 About ACA and Consolidated Appropriations Act, 2021 Implementation
- CMS resource page: Gag Clause Prohibition Compliance Attestation
- Instructions
- User manual
- Template [Excel download]
- Submission system website