Employers Given Further Guidance on New Gag Rule Requirements for Health Plans
The Consolidated Appropriations Act (CAA) was a law passed in 2021 that had many effects on health care and health insurance in the country. One of the regulations within the CAA was the prohibition of so-called “gag clauses”. A “Gag Clause” is, according to the law, any provision in a health insurance contract limiting third party access to “provider-specific cost or quality of care information or data, through a consumer engagement tool or any other means, to referring providers, the plan sponsor, participants, beneficiaries, or enrollees, or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage”. Essentially, it prohibits group health plans from concealing crucial provider-specific information (such as cost and quality data) from plan participants.
Included in the Gag Clause provision of the CAA is the requirement for group health plans to officially attest that there are no Gag Clauses in their health insurance agreements. The first attestation must be made by December 31, 2023 and covers the period between December 27, 2020 and December 31, 2023. A new attestation must be made annually thereafter.
Employers should review all plan documents they currently have in place and are planning to release in the future to locate and remove potential Gag Clauses. Any passages that mention restriction of access to information should be scrutinized. Depending on the type of insurance offered by the employer, further steps should be taken as soon as possible:
- Employers with fully insured health plans should contact their insurance carrier and confirm that the carrier will submit the attestation.
- Employers with self-funded health plans should reach out to their TPAs (or equivalent service providers) to determine how the attestation will be submitted.