Preparing for the 2024 Gag Clause Attestation: Key Resources and Action Steps for Employers

On May 24, 2024, the U.S. Department of Labor (DOL) released a set of resources to help health plans and insurance issuers with their annual submission of the attestation of compliance with the gag clause prohibition under the Consolidated Appropriations Act (CAA). These resources are intended to aid in submitting the upcoming gag clause attestation, due by December 31, 2024.

Background

Effective in 2020, the CAA prohibits health plans and issuers from entering into contracts with health care providers, third-party administrators (TPAs) or other service providers that contain gag clauses (i.e., clauses restricting the plan or issuer from providing, accessing or sharing certain information about provider price and quality and de-identified claims).
Plans and issuers must annually submit an attestation of compliance with the CAA’s gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury (Departments). The first attestation was due by Dec. 31, 2023. Subsequent attestations are due by Dec. 31 of each following year.

2024 Resources

The DOL has published instructions for submitting the next attestation, a system user manual and a template for 2024, as follows:

• 2024 Annual Submission Instructions
• 2024 User Manual
• 2024 Template

Instructions and a user manual for submitting prior attestations were previously made available by the Centers for Medicare & Medicaid Services.

Action Steps

Employers should review their contracts with issuers, TPAs or other health plan service providers to confirm they do not contain prohibited gag clauses. Also, employers should review what action they may need to take to comply with the gag clause attestation requirement:

• An employer does not need to provide an attestation for a fully insured health plan if the issuer for the plan provides the attestation.
• Self-insured employers can enter into written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan. While some TPAs are willing to submit attestations on behalf of their self-insured groups, other TPAs have indicated they are unwilling to do so.

Employers who need to submit their own attestations should review the latest instructions and user manual for submitting attestations.