The Consolidated Appropriations Act, 2021 (CAA) prohibits group health plans and health insurance carriers from entering into agreements with providers, TPAs, or other service providers that include language that would constitute a “gag clause” (i.e., contract provisions that restrict specific data and information that a plan can make available to another party).
Plans and issuers must annually submit an attestation of compliance with these requirements. The first attestation is due December 31, 2023 (attesting to compliance for 2021 – 2023). Subsequent attestations are due by December 31 of each year thereafter.
What Do You Need To Do For CAA Gag Clause Attestation?
CMS created a webpage with information about how to comply with the gag clause prohibition as well as how to attest to compliance.
The attestation requirement is a fairly straightforward process, requiring only some plan identifying information, employer contact information, and a checked box and signature to indicate compliance. This is all done via the CMS website portal.
The Attestation Process Can Be Broken Down Into 4 Steps:
1. Confirm Compliance
Save any attestation documentation received from your carrier or TPA.
2. Obtain Website Access
Go to CMS’ portal, enter in an email address, and get a unique code to access the attestation form.
3. Complete the Attestation Form
Fill out the required information in 5 short sections of the form and then sign off on compliance with the gag clause prohibition requirements.
4. Confirm Submission
Upon completion and submission of the form, download the submission receipt and file it way in case of future audit or questions.
CAA Gag Clause Attestation Responsibility
The attestation(s) due in 2023 should attest to compliance for all service providers connected to the plan during the 2021 – 2023 timeframe. If you changed carriers one or more times since 2021, please review closely as you may need to attest for a prior carrier.
- If a plan carves out pharmacy benefit management or mental health, the plan sponsor is responsible for the Gag attestation on the carveout entity arrangement.
- Attestation must also be completed for additional service providers that are involved in contracting with providers on behalf of the employer’s group health plan. For example, PBMs, behavioral health vendors, telehealth arrangements, and direct primary care arrangements.
While every effort has been taken in compiling this information to ensure that its contents are totally accurate, neither the publisher nor the author can accept liability for any inaccuracies or changed circumstances of any information herein or for the consequences of any reliance placed upon it. This publication is distributed on the understanding that the publisher is not engaged in rendering legal, accounting or other professional advice or services. Readers should always seek professional advice before entering into any commitments.