Employers that sponsor self-insured health plans, and the Third Party Administrators (TPAs) that service such plans, should become familiar with new regulatory guidance addressing a filing requirement relating to “gag clauses,” due December 31, 2023 (and each year thereafter).
Recent regulatory guidance can be found here: FAQS ABOUT AFFORDABLE CARE ACT AND CONSOLIDATED APPROPRIATIONS ACT, 2021 IMPLEMENTATION PART 57
In general, a “gag clause” is a contractual term that directly or indirectly restricts specific data and information that a plan can make available to another party.
Gag clauses in this context might be found in agreements between a plan and a health care provider; a network or association of providers; a TPA; or another service provider offering access to a network of providers.
The first Gag Clause Prohibition Compliance Attestation is due no later than December 31, 2023, covering the period beginning December 27, 2020 through the date of attestation.
Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter.