Federal Agencies Issue FAQs (Part 57) to Provide Guidance on Gag Clause Ban for Group Health Plan Agreements

May 18, 2023
Hall Benefits Law, LLC

The DOL, IRS, and HHS have issued joint FAQs About Affordable Care Act and Consolidated Appropriations Act, 2021 Implementation Part 57. These FAQs address certain provisions of the Consolidated Appropriations Act, 2021 (CAA, 2021) that ban so-called “gag clauses” or any provisions in group health plan agreements that preclude certain disclosures of provider-specific cost or quality-of-care information. Previously, the agencies advised plans and insurers to implement this prohibition using a good-faith, reasonable interpretation of the statute, which took effect in December 2020. The FAQs provide further guidance for implementing the ban and instructions on submitting the annual compliance attestation. Finally, the FAQs give instructions on reporting suspected violations of the gag clause ban.

Gag Clauses

The gag clause ban applies to all agreements between group health plans or insurers and providers, third-party administrators, or other service providers. The FAQs define a gag clause as any “contractual term that directly or indirectly restricts specific data and information that a plan or issuer can make available to another party.” Gag clauses may be direct or indirect and include any restrictions on any of the following:

  • Disclosure of provider-specific cost information;
  • Disclosure of quality-of-care information;
  • Electronic access to the de-identified participant and beneficiary claim; information (consistent with applicable privacy protections); and
  • Restrictions on sharing these types of data or information.

Annual Compliance Attestations

The CAA, 2021 requires plans and insurers to submit an annual compliance attestation concerning their adherence to the gag clause prohibition. The first Gag Clause Prohibition Compliance Attestation (GCPCA) covers the period from December 27, 2020, or the date that the plan or insurance coverage took effect, whichever is later, through the date of attestation, is due by December 31, 2023. Subsequent attestations are due on December 31st of each year.

The annual compliance attestation requirement applies to health insurers offering group or individual coverage and insured and self-insured health plans, including ERISA plans, non-federal governmental plans, and church plans. Attestation is not required for excepted benefits. Additionally, the agencies will not enforce the requirement against health reimbursement arrangements (HRAs) or other account-based plans. Attestations are submitted through CMS’s Health Insurance Oversight System (HIOS).

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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