Gag Clause Attestation

In the mad world of health care, the CAA21's gag clause prohibition stops plans from shackling themselves to agreements that suppress vital information and data. This "gag clause" is a sneaky contractual term that keeps information locked away from prying eyes.

What kind of info? Think provider-specific costs, quality of care information and/or data, or electronic access to de-identified claims. It could be hidden in agreements between plans and providers, networks, TPAs, PBMs, or other service providers with a network.

But here's the catch: these restrictions don't have to be spelled out word-for-word. As long as the contract term, directly or indirectly, muzzles a plan from sharing the goods, it's breaking the gag clause prohibition rules.

Who must comply? Fully insured and self-insured group health plans – ERISA plans, non-Federal governmental plans, and church plans – must all toe the line with this prohibition. Grandfathered health plans don't get a free pass, either.

And it doesn't stop there. Plans must also swear an oath of gag clause prohibition compliance every year. The first deadline looms on December 31, 2023, covering agreements from December 27, 2020, through December 31, 2023. After that, attestations are due annually by December 31st.

Some entities can sidestep this attestation requirement if they only offer excepted benefits (like accident-only or disability coverage) or if they're short-term insurance providers or Medicare/Medicaid plans. HRAs and account-based group health plans can breathe easy, too.

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