The holiday season brings not only a time of joy and celebration but also significant compliance challenges for plan sponsors, notably the gag clause attestation requirement mandated by the Consolidated Appropriations Act of 2021 (CAA). This new requirement, which prohibits plan sponsors from entering into agreements containing gag clauses post-December 27, 2020, has set a deadline of December 31, 2023, for attestation to the Centers for Medicare & Medicaid Services (CMS) that such agreements have not been made.
Understanding the Gag Clause Prohibition
A gag clause, in the context of the CAA, refers to any provision in a contract that restricts a plan from providing or accessing provider-specific cost or quality of care information, or sharing such information with associates. These clauses have historically limited the transparency and accessibility of vital healthcare data, prompting this legal intervention.
The Attestation Requirement
This requirement applies to both fully insured and self-insured health plans, encompassing ERISA, governmental, and church plans. In the case of fully insured plans, the insurer can complete the attestation on behalf of each employer plan sponsor. However, self-insured plan sponsors must take responsibility for their own attestation, whether filed directly with CMS or delegated to a third-party administrator (TPA).
Challenges Faced by Plan Sponsors
The primary challenge for plan sponsors is the difficulty in ascertaining whether gag clauses exist within their agreements. This is compounded by the possibility of undisclosed network agreements and the nuances of direct contracts with vendors, which may include gag clauses or similar provisions. Moreover, the requirement extends to any contract entered into since December 27, 2020, encompassing potentially defunct vendor relationships.
Networks issuing “gag clause certifications” provide some relief but should be approached with caution. Receipt of such a certification does not automatically ensure compliance, as it typically confirms the absence of gag clauses in the network’s contracts rather than the employer’s.
Navigating the Attestation Process
Filing the attestation involves identifying the plan, providing demographic information, and specifying the types of provider agreements in question through the CMS HIOS website. An authorized individual must then formally attest that no agreements with gag clauses have been entered into since the specified date.
The Gray Area of Compliance
The rapid drafting of the CAA during a tumultuous period has left many aspects open to interpretation, leading to more questions than answers. As a result, certain employers may find themselves in situations where full compliance is challenging, if not impossible. The focus, therefore, shifts to making “as compliant as possible” efforts, including good-faith endeavors to identify and rectify any inadvertent gag clauses.
Conclusion: Striving for Compliance in Uncertain Times
As the industry grapples with this attestation conundrum, it’s clear that the path to compliance is fraught with complexities. Plan sponsors must diligently review their contracts, understand the implications of the CAA, and strive towards transparency in their healthcare agreements. While the journey to compliance may not be straightforward, it is a necessary one in the pursuit of greater healthcare transparency and accountability.
For more insights into navigating the complexities of healthcare compliance and the impact of recent legislation, explore our other related blogs, particularly those focused on compliance for employers with 20 or more employees.
