The Consolidated Appropriations Act of 2021 requires group health plans and health insurance issuers to attest compliance with the CAA’s prohibition on gag clauses. The gag clause prohibition began in 2020 and the first attestation is due December 31, 2023.
A gag clause in an insurance contract refers to a provision that restricts or limits the insured individual or their healthcare provider from discussing certain information related to the insurance policy or their medical treatment. It is also known as a confidentiality clause or a non-disclosure clause.
Typically, a gag clause prohibits the disclosure of specific details, such as the negotiated rates between the insurance company and healthcare providers, the terms of the insurance contract, or information regarding the quality, cost, or effectiveness of medical services.
The CAA prevents a group health plan or health insurance issuer from entering into any agreements that contain a gag clause. To ensure compliance, the CAA requires an annual joint attestation to the Department of Labor, Department of Health and Human Services, and Department of Treasury. Health insurance carriers providing group health coverage or individual coverage and both fully insured and self-funded health plans are required to report.
For a fully insured plan, if the insurance company reports on behalf of the plan, no additional reporting is required by the plan or plan sponsor. To ensure compliance, sponsors of fully insured plans should get confirmation from their carrier that the insurance company will be submitting the attestation on the plan’s behalf.
The first attestation is completed on the CMS website (accessed by clicking here) and must be completed no later than December 31, 2023. The first report covers December 27, 2020 through the date of the attestation.
Plan sponsors should review their plan documentation to make sure the plan does not include a gag clause. Then, plan sponsors should prepare to submit the required attestation or confirm that their insurance company will be attesting on their behalf.
