Gag Clause Prohibition Compliance Attestation

Each year by December 31^st, group health plans and health insurance issuers must attest their agreements with healthcare providers, networks/associations of healthcare providers, third party administers (TPA), or other service providers that contain a gag clauses on price and quality information. A gag clause is a provision of a contract that prevents the sharing of specified information. Employers, as group health plan sponsors, are responsible for ensuring their plan is complying with the prohibition on gag clauses and making the required attestation.

What Employers Should Do

Employers who sponsor a fully insured group health plan should consider working with their insurance carrier to submit the required attestation. While insurance carriers are required to submit their own attestation, they are also able to submit attestations on behalf of plan sponsors of fully insured plans.

Employers who self-fund their group health plan would be well served to work with their TPA or another third party to complete the required attestation. Some TPAs will attest on behalf of a self-funded plan, while others are confirming they comply with the gag clause prohibition but leaving the employer to complete the attestation. The attestation covers all agreements, so an employer working with separate entities to provide different benefits, such as a separate TPA and pharmacy benefit manager (PBM), should confirm all entities they contract with comply with the gag clause prohibition.

Employers who must attest themselves must submit the attestation through this federal website and instructions for completing the attestation can be found here. This user manual helps walk attesters through the process of submitting their attestation.

_{The information provided is a summary of laws and regulations relating to employee benefit plan compliance. This information should not be construed as legal advice. In all cases, employers should consult with their own legal counsel.}