On February 23, 2023 the Departments of Labor, Well being and Human Providers, and Treasury (“Departments”) issued steering on the “no gag clause” rule that was added as a part of the Consolidated Appropriations Act, 2021 (“CAA”). Extra info on the CAA could also be present in our January 2021 Shopper Alert and November 2021 Shopper Alert.
This Shopper Alert summarizes the current steering on the “no gag clause” rule, together with the brand new reporting necessities and the way group well being plans can adjust to them.
1. What’s a “gag clause”?
Usually, a “gag clause” is a contractual provision that restricts a well being plan from offering sure info to a different occasion. The “no gag clause” rule applies to contracts between a plan and a well being care supplier, a community or affiliation of suppliers, a third-party administrator (“TPA”), or one other service supplier providing entry to a community of suppliers.
2. What does the “no gag clause” rule prohibit?
Well being plans can’t enter into agreements that instantly or not directly limit the plan from (i) disclosing provider-specific price or high quality of care info to suppliers, the plan sponsor, and members; (ii) electronically accessing de-identified claims and encounter info or knowledge for every participant; and (iii) sharing this kind of info with a enterprise affiliate.
3. What are some examples of gag clauses?
- A contract between a gaggle well being plan and a TPA that states that the plan pays suppliers at designated “Level of Service Charges,” however the TPA contractually prohibits the plan from disclosing the charges to members.
- A contract between a gaggle well being plan and TPA that states the plan sponsor’s entry to provider-specific price and high quality of care info is just out there on the TPA’s discretion.
4. Is a contractual time period a prohibited gag clause if it doesn’t explicitly limit a plan from offering, accessing, or sharing the data described in Query 2?
Sure. A contract can’t instantly or not directly forestall a plan from offering, accessing, or sharing the recognized info.
5. What’s the Gag Clause Prohibition Compliance Attestation?
Group well being plans should yearly undergo the Departments an attestation that they adjust to the “no gag clause” rule.
6. When is the Gag Clause Prohibition Compliance Attestation Due?
The primary attestation is due December 31, 2023. The attestations can be due by December 31 annually thereafter. Failure to submit and late attestations could also be topic to enforcement motion by the Departments. For instance, failure to adjust to the no gag clause rule might lead to a tax underneath the Inside Income Code.
7. How do plans submit an attestation?
Plans could go to https://hios.cms.gov/HIOS-GCPCA-UI to submit the attestation. Directions and a person guide can be found on-line, in addition to a template for offering the required info.
8. What entities should submit a Gag Clause Prohibition Compliance Attestation?
Entities required to submit an attestation embrace:
- medical insurance issuers providing group medical insurance protection; and
- absolutely insured and self-insured group well being plans, together with ERISA plans, non-federal governmental plans, and church plans topic to the Inside Income Code.
Amongst different kinds of plans, attestation is not required for plans providing solely anticipated advantages, or short-term, restricted period insurance coverage. Moreover, the Departments won’t implement the attestation requirement on plans that consist solely of well being reimbursement preparations (“HRAs”) or different account-based group well being plans as a result of the design of such plans doesn’t require getting into into agreements with suppliers.
9. Who could attest to compliance on behalf of a plan or subject.
The plan, issuer, or licensed service supplier (on behalf of a plan) could authorize an applicable particular person throughout the group, such because the plan administrator, to offer the attestation.
10. Can one other entity, resembling a pharmacy profit supervisor, TPA, or different service supplier attest on behalf of a self-insured group well being plan?
Sure. Self-insured and partially self-insured plans could present an attestation by getting into right into a written settlement the place the service supplier attests on the plan’s behalf, however the authorized requirement to offer a well timed attestation stays with the plan.
For absolutely insured group well being plans, the plan and issuer should each submit an attestation, but when the issuer submits the attestation on behalf of the absolutely insured plan, the Departments will take into account the plan and issuer to have glad the attestation requirement.
11. What ought to an occasion do if there’s a suspected violation of the gag clause prohibition or attestation necessities?
Considerations could also be raised by contacting the No Surprises Assist Desk at 1-800-985-3059, submitting a grievance right here or contacting the relevant state authority.
12. What steps ought to employers take to adjust to the no gag clause rule and attestation necessities?
- Employers ought to evaluation contracts between their group well being plans and repair suppliers to confirm there aren’t any prohibited gag clauses. Contracts with prohibited gag clauses must be amended.
- Employers with self-insured well being plans ought to negotiate and enter into an settlement with their TPA to offer the attestation on the plan’s behalf.
- Employers with absolutely insured plans ought to coordinate with the insurer and ensure in writing that the insurer will submit the attestation on the plan’s behalf.
If in case you have any questions in regards to the new steering or want help reviewing service contracts, please attain out to a member of the Kutak Rock Worker Advantages Group.
New Steerage on “No Gag Clause” Rule for Group Well being Plans and New Reporting Necessities
