By: Nic Hayes
Beginning in 2023, employer-sponsored health plans must attest to compliance with the gag clause prohibition annually. With the first attestation deadline being December 31, 2023, Jennifer Berman, CEO of MZQ Consulting, joined the Granite List Live to discuss the gag clause attestation, what it means for employers, and everything else employers and plan sponsors need to know.
What is a gag clause attestation?
Group health plans are prohibited from entering into any agreement with providers, provider networks, or any other entity offering access to a network of providers that includes any contractual terms that directly or indirectly restrict the plan’s ability to make specific data and information available to another party. Specifically, there are restrictions on disclosing provider-specific cost or quality of care information, electronic access to de-identified participant and beneficiary claim information, and sharing these kinds of data and information.
With these restrictions in mind, beginning in 2023, plans must attest their compliance with the gag clause prohibition by submitting a Gag Clause Prohibition Compliance Attestation through CMS’s Health Insurance Oversight System.
Although this will be the first year, plans must make attestations; as Jen explained, sponsors must attest that their plans have not had any gag clauses since December 27, 2020, which could cover as many as four plan years and multiple carriers and other plan agreements.
Who will have to attest?
Every employer is required to make these attestations. There are also specific situations where third-party administrators are allowed to attest on behalf of their groups.
What makes attestations difficult?
For employers, this attestation can be tricky for several reasons.
For starters, employers who contract with a TPA, carrier, or even a fully insured plan aren’t privy to all of the network contracts that might exist; however, even though they are likely, not secret, it would still be their responsibility to make the gag clause attestation. With many employers not knowing the network contracts, a number of TPAs, carriers, and extensive networks have sent out letters to employers stating that they don’t and haven’t had gag clauses since a specific date.
To make matters even more complicated for employer plan sponsors, more than one attestation may be required. Employers with multiple networks will have to attest for each network they offer – meaning that they have to be aware of the contract details of each network contract in the networks they offer.
As of October 4, when employer plan sponsors go to fill out the GCPCA (Gag Clause Prohibition Compliance Attestation), there is only one choice – ‘Yes, I am attesting that I have no gag.’ With this being a government form, Jen recommended that no client or group should fill out the form unless they are sure, without a doubt, that it had no gag clauses. Even though the consequences for falsely filing the form are unknown, attesting to the federal government something untrue is not a wise decision. Making employer plan sponsors responsible for making the attestations and only giving them the choice of attesting with no gag clauses puts plan sponsors in a difficult position of not knowing but needing to know.
So, how should employers navigate this space?
What plan sponsors should do?
Regarding the upcoming deadline, Jen strongly advises not just to file the GCPCA because it is a requirement, but only if you can confidently attest that there have been gag clauses since December 27, 2020. When it comes to confidently knowing, though, TPAs and carriers are the only ones with the information necessary to make the attestation; if plan sponsors have a carve-out arrangement, that would be another place to find more provider agreements. Additionally, for plan sponsors with a PBM, agreements with pharmacies are another place plan sponsors could look for gag clauses. While these are some places where gag clauses can be found, plan sponsors must look everywhere before they attest to avoid falsely filing.
All employer plan sponsors are fiduciaries, meaning they are required to act in the best interest of their employees as plan participants and follow the law. Acting as a fiduciary, plan sponsors can ensure that gag clauses never enter their plans on the front end. Plan sponsors can ensure that gag clause provisions don’t exist by holding vendors accountable in verifying that gag clauses are gone, confirming that they are following transparency rules, and confirming that gag clauses are not in place. By holding vendors responsible and seeing for yourself, the concern surrounding attestations can be alleviated by not allowing them in in the first place.
We are proud to feature MZQ Consulting on the Granite List.
