Since 2023, the Consolidated Appropriations Act of 2021 (aiming to increase transparency in health care) has prohibited the use of “gag clauses” in group health plan agreements.
Health plans must annually attest that they have not entered into any agreement that directly or indirectly restricts their ability to make certain data and information (e.g., cost or quality of care data and claims information) available to another party. The prohibited clauses may be found in agreements with third-party administrators, network providers, health care providers, or other service providers.
To comply with the prohibition, plan sponsors should review service provider agreements for gag clauses and amend where necessary. Plans are permitted to allow their TPA or carrier to complete the attestation on the plan’s behalf. Sponsors of self-funded plans should consider amending service agreements with third party administrators to clearly delegate that responsibility, and sponsors of fully insured plans should confirm the carrier is handling the reporting. All plan sponsors should request and retain confirmation that the attestation is completed each year. Additionally, plan sponsors may want to consider amending service agreements to require service providers to hold their subcontractors, agents, or other entities to which they outsource duties to the same standards with respect to gag clauses.
The attestation is due on December 31st, 2024, and may be filed online. Instructions, FAQs, and other filing resources are available here.
If you have questions, contact your Boutwell Fay attorney or email us at attorneys@boutwellfay.com.
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