Effective in 2020, the Consolidated Appropriations Act, 2021 (CAA) prohibits health plans and insurance issuers from entering contracts containing gag clauses. These clauses restrict access, sharing, or provision of information about provider price, quality, or de-identified claims.

Health plans and issuers must annually attest compliance with this prohibition to the Departments of Labor, Health and Human Services, and the Treasury. The next attestation is due by Dec. 31, 2024, covering the period since the last attestation.

Action Steps

1. Employers with Fully Insured Health Plans:
   • The plan’s issuer provides the attestation, so employers do not need to act.
2. Employers with Self-Insured Health Plans:
   • Enter written agreements with TPAs to provide attestations. However, legal responsibility remains with the health plan.

Employers submitting their attestations must follow CMS instructions available online.

Prohibition on Gag Clauses

Contracts cannot restrict:

1. Sharing provider-specific cost or quality-of-care information.
2. Electronically accessing de-identified claims and encounter data.
3. Sharing or directing data in compliance with privacy laws (HIPAA, GINA, ADA).

Compliance Attestation Requirements

Attestations must be submitted annually via a CMS web form. Missing the Dec. 31, 2024, deadline may result in enforcement actions.

Additional Resources

• FAQs about the CAA’s Gag Clause Prohibition
• CMS Gag Clause Attestation Website

Provided by ThinkTank Insurance Partners