America's Benefit Specialist October 2023

GAG-CLAUSE PROHIBITION

4 Issuers and group health plans that offer only excepted benefits coverage, including hospital indemnity or other fixed indemnity insurance, disease-specific insurance, dental, vision, and long-term care, and accident-only, dis ability and workers’ compensation 4 issuers that offer only short-term, limited-duration insurance 4 Medicare and Medicaid plans 4 state children’s health insurance program plans 4 Basic Health Program plans WHAT DO EMPLOYERS ATTEST TO? I asked Marilyn to explain what employers are specifically asked to provide an attestation on. “Plan sponsors are asked to attest that their group health plan has not entered into any contracts that contain gag clauses,” she said. “With respect to the webform that must be executed by this De cember 31, the attester must attest that ‘the group health plan(s)…on whose behalf I am signing will not enter into an agreement, and has not, subsequent to December 27, 2020, entered into an agreement with a healthcare provider, network or association of providers, third-party administrator or other service provider offering access to a network of pro viders that would be directly or indirectly restrict the group health plan(s) or health plan(s) or health insurance issuer(s) from’ disclosing the types of information outlined in the law.” The attestation language for December 31, 2023’s filing can be found on the CMS website as well as in the FAQs. It includes: I attest that , in accordance with section 9824(a)(1) of the Internal Revenue Code, section 724(a)(1) of the Employee Retirement Income Security Act, and section 2799A-9(a) (1) of the Public Health Service Act, the group health plan(s) or health insurance issuer(s) offering group health insurance coverage on whose behalf I am signing will not enter into an agreement, and has not, subsequent to December 27, 2020, entered into an agreement with a healthcare provider, network or association of providers, third-party administrator or other service provider offering access to a network of providers that would be directly or indirectly restrict the group health plan(s) or health plan(s) or health insurance issuer(s) from: 1. providing provider-specific cost or quality-of-care infor mation or data, through a consumer-engagement tool or any other means, to referring providers, the plan sponsor, participants, beneficiaries or enrollees, or individuals eli gible to become participants, beneficiaries or enrollees of the plan or coverage. 2. electronically accessing de-identified claims and en counter information or data for each participant, benefi

that contractual provision would be considered a prohibited gag clause. ATTESTATION OF COMPLIANCE Employers sponsoring health plans and health insurance is suers (carriers or HMOs) are required to submit a Gag Clause Prohibition Compliance Attestation (GCPCA) that confirms that they are compliant with this CAA provision by December 31 of each year, and the first attestation is due for the period beginning December 27, 2020, through 2023 on December 31, 2023. Again, this is an annual requirement, so be prepared to do these filings or subcontract with a third party to do them for you each year no later than December 31. It is important to note that both the group health plan (employer plan sponsor) and the health insurance issuers are legally obligated to make such attestations. Entities that must comply include: • health insurance issuers offering group health insurance coverage • health insurance issuers offering individual health in surance coverage, including student health insurance coverage and individual health insurance coverage issued through an association • fully insured and self-insured group health plans, including ERISA plans, non-federal governmental plans and church plans subject to the IRC These provisions apply to grandfathered and non-grand fathered plans, and small- and large-group plans. They do not apply to account-based plans (such as HRAs), excepted benefits, and stand-alone dental and vision plans. REPORTING ENTITIES REQUIRED TO ATTEST: 4 issuers offering individual health insurance coverage, including student health insurance plans, grandfathered and grandmothered plans, policies sold on or off exchang es, and policies sold through an association 4 issuers offering group health insurance coverage, includ ing grandfathered and grandmothered plans, policies sold on or off exchanges, and all other group health insurance plans 4 group health plans, including the following to the extent they are considered group health plans: ERISA plans (or sponsors of ERISA plans), non-federal governmental plans, such as plans sponsored by state or local governments, church plans and grandfathered group health plans under the ACA ENTITIES NOT REQUIRED TO ATTEST: 4 account-based plans, such as HRAs and ICHRAs

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