The DOL, HHS, and IRS have collectively issued FAQ steering (Half 57) addressing provisions of the Consolidated Appropriations Act, 2021 (CAA, 2021) that prohibit group well being plan agreements from precluding sure disclosures of provider-specific price or quality-of-care info. The companies beforehand indicated that, pending the issuance of steering, plans and insurers had been to implement the necessities prohibiting these “gag clauses” utilizing religion, cheap interpretation of the statute (see our Checkpoint article). The FAQs present additional steering on the prohibition, together with instructions for submitting the yearly required compliance attestation. Listed below are highlights:

• Gag Clause Prohibition (Q/As-1 by -4). The prohibition applies to agreements between group well being plans or insurers and suppliers, third-party directors (TPAs), or different service suppliers. The FAQs clarify {that a} gag clause is a “contractual time period that straight or not directly restricts particular information and knowledge {that a} plan or issuer could make accessible to a different social gathering.” Particularly, this contains restrictions on disclosing provider-specific price or quality-of-care info, restrictions on digital entry to de-identified participant and beneficiary declare info (in step with relevant privateness protections), and restrictions on sharing all these information or info. Examples embrace a TPA’s makes an attempt to limit disclosure of supplier charges as a result of it considers them proprietary, or to permit entry to provider-specific price and quality-of-care info solely on the TPA’s discretion. The FAQs word, with out elaboration, that “cheap restrictions” could also be positioned on public disclosure of this info. Even with out an specific restriction, provisions that function to limit entry to or disclosure of relevant info violate the prohibition.

• Compliance Attestation (Q/As-5 by -12). The CAA, 2021 requires plans and insurers to yearly attest to their compliance with the gag clause prohibition. The FAQs present that the primary Gag Clause Prohibition Compliance Attestation (GCPCA), overlaying the interval from December 27, 2020 (or, if later, the efficient date of the plan or insurance coverage protection) by the date of attestation, is due no later than December 31, 2023. Subsequent attestations are due every December 31. This requirement applies to well being insurers providing group or particular person protection and to insured and self-insured group well being plans, together with ERISA plans, non-federal governmental plans, and church plans topic to the Code, no matter whether or not the plans are grandfathered or grandmothered below the ACA. Attestation shouldn’t be required for excepted advantages, and the companies won’t implement the requirement towards well being reimbursement preparations (HRAs) or different account-based plans. Self-insured plans could enter into an settlement with a service supplier to submit the attestation, however the authorized requirement stays with the plan. An insurer that gives administrative companies to self-insured plans could submit a single attestation overlaying the insurer, its absolutely insured plans, and its self-insured plan purchasers; the FAQs suggest that the insurer coordinate with every plan to keep away from duplication. Attestations are submitted by CMS’s Well being Insurance coverage Oversight System (HIOS). Detailed directions, a person handbook, and a reporting template are offered on the GCPCA webpage and are additionally linked in an EBSA bulletin.

• Reporting Violations (Q/A-13). Data is offered on the way to report suspected violations of the gag clause prohibition.

EBIA Remark: The gag clause prohibition took impact upon enactment of the CAA, 2021 in December 2020, so problematic provisions ought to have already got been excised from agreements. In preparation for the primary attestation deadline, plan sponsors and insurers ought to overview the directions and technical steering—and make sure that no prohibited provisions stay of their agreements. For extra info, see EBIA’s Self-Insured Well being Plans handbook at Part XXIII.B (“Contracting With Service Suppliers”). See additionally EBIA’s Well being Care Reform handbook at Part XXXVII.E (“Shock Medical Billing Transparency Disclosures”), EBIA’s Group Well being Plan Mandates handbook at Part XIII.B (“Affected person Protections”), and EBIA’s ERISA Compliance handbook at Part XXX.E (“Content material of the TPA Settlement”).

Contributing Editors: EBIA Workers.