The Consolidated Appropriations Act (CAA) of 2021 includes a provision prohibiting a health plan and related service entities from entering into so-called gag clauses. The intent of this law is to ensure that interested parties, such as health plan participants, health providers and the like, have access to cost and quality care information allowing such parties to access the identified information and allowing the sharing of such information with business associates. Hence, health plans and related vendor contracts cannot include a clause that restricts the sharing of this type of information. Notably though, a plan or contract can restrict certain public sharing of such information. In order to ensure that plans are complying with the proper requirements of the no so-called gag clauses, an attestation must be submitted to the tri-governing agencies (Departments of Health and Human Services, Labor and Treasury). This is known as a gag clause attestation.

The first attestation is due by December 31, 2023, reflecting the period from December 27, 2020 (date of the law’s enactment) through the date of attestation. Subsequent attestations are due annually thereafter and must be made no later than December 31 of the relevant year and reflect the period from the previous attestation.

The attestation must be made by health insurers and health plans, including insured and self-funded plans, state and local government plans and church plans, including grandfathered and grandmothered plans. The attestation is not required for excepted benefit plans, such as dental and vision plans, nor is it required for account-based plans, such as health flexible spending accounts and health reimbursement arrangements.

The attestation is a fairly straight forward process accomplished by completing a web form (link here). For insured plans, if the insurer affirms that it is attesting on behalf of the plan, the employer has no further obligation. For self-funded plans, the plan sponsor can contract with service providers, such as third-party administrator, pharmacy benefit manager, behavioral health manager and the like, to accomplish the attestation. If, however, the vendor will not perform the attestation, the plan sponsor must do it.

Following is a brief walk-through of the attestation process from the perspective of a plan sponsor:

• Access Gag Clause Attestation website Gag Clause Attestation | Welcome! (cms.gov)
• Select “Don’t have a code or forgot yours?”
• Enter an email address
• Once the code has been received (generally within 10 minutes), return to the website and select “Enter Webform Now.”
  • If no code is received, return to the home page and request another code.
  • The code is active for 15 days. If the code expires you will need to request a new code.
• Define who attesting on behalf of (Reporting entity, submitter, or attester)
• Enter employer EIN and ERISA 3-digit plan number, mailing address, email address, and phone number
• Enter provider agreement for which attestation is being made:
  • Select yes if attesting for all.
  • Select no if only attesting to certain provider agreements (TPA, PBM).This could occur if other vendors are attesting on behalf of other portions of the plan.
• If submitter and attestor are the same, review submission, and continue to attestation
  • Check the agree with attest box
  • Sign, download and retain proof of submission
• If submitting entity is not the attestor, select notify attester and insert attestor’s email
  • System will send email to attestor
  • Attestor will enter code from email and complete the attestation
  • Retain proof of submission for your records

The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.