Unmuzzled: Time to Attest That No Gags Apply
The Departments of Labor, Health and Human Services, and the Treasury have issued guidance on how health plans and insurers may attest to their compliance with the anti-gag rules of the Consolidated Appropriations Act, 2021 (CAA).
- The CAA prohibits health plans and insurers from entering into contracts with certain service providers that restrict electronic access and sharing of certain types of data.
- Under the CAA, health plans and insurers are required to attest annually to the government that they comply with these anti-gag requirements.
- The new guidance includes forms, instructions, and other information that collectively provide a mechanism for meeting the attestation requirement.
The Bottom Line
By December 31, 2023, health plans and insurers must submit an attestation of compliance with the anti-gag rules, covering the period from the date the CAA was enacted (December 27, 2000) to the date of submission. Beginning in 2024, health plans and insurers must submit the attestation by December 31 every year.
The Departments of Labor, Health and Human Services, and the Treasury have jointly issued guidance on the requirement in the CAA), that health plans and insurers attest to their compliance with the prohibition against gag clauses. The CAA prohibits plans and insurers from entering into agreements with health care providers, third-party administrators, and other service providers that would directly or indirectly restrict the plan or insurer from sharing with the plan sponsor, plan participants, and certain others cost and quality information that is specific to providers or from electronically accessing claims and encounter information that is specific to (de-identified) enrollees.
The CAA requires plans and insurers to attest annually to their compliance with this provision, and the rule applies to all agreements entered into on or after the date that the CAA was enacted (December 27, 2020). However, there has been no mechanism to make the attestation until now.
The new guidance includes applicable forms, instructions for the electronic submission of the attestation, and frequently asked questions and answers that provide additional guidance. The guidance provides that:
- The first attestation must be made no later than December 31, 2023, and must cover the period between December 27, 2020 and the date of the submission.
- Beginning in 2024, attestations must be made each year, by December 31.
- Excepted benefits (like most dental, vision, and employee assistance plans), short-term limited duration insurance, Medicare plans, and certain other arrangements are exempt from the attestation rule.
- A non-enforcement policy will apply to health reimbursement arrangements (HRAs) and other account-based plans, although they may be integrated with other plans that need to comply.
- Plans may arrange with insurers and third party administrators to attest on their behalf, but self-funded plans will remain legally liable for any failure by a vendor to make the filing.
- Reporting entities may authorize an appropriate individual to make the attestation on the organization’s behalf.
- Failure to file could result in enforcement action, which may a $100 per day excise tax under the Internal Revenue Code or civil penalty under ERISA.
The new guidance describes how the attestation may be submitted electronically. As with many CAA requirements, health plans and insurers should consider contracting with insurers and administrative service vendors to complete the attestation on their behalf.
Subscribe to Ballard Spahr Mailing Lists
Copyright © 2023 by Ballard Spahr LLP.
(No claim to original U.S. government material.)
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.
This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.