Gag clause attestation reminder update

This is a reminder that the initial attestation of compliance for employer-sponsored group health plans is due by December 31, 2023. This initial attestation will cover the period from December 27, 2020 – December 31, 2023.

Marsh McLennan Agency recently hosted a webinar addressing this prohibition on gag clauses in detail, including the mechanics of how to complete the attestation if it is necessary for an employer to do so.

Webinar replay

Presentation

In addition to this material, please see our answers to certain frequently asked questions below. If you have any questions about the prohibition on gag clauses, your responsibility (if any), or the attestation process, please do not hesitate to contact your Marsh McLennan Agency client service team.

Frequently Asked Questions

1. What is a gag clause?
   
   In this context, a gag clause is a contractual provision that prevents one party from communicating or sharing certain information about another party or matter.
   
   The Prohibition on Gag Clauses is one of several new laws and rules intended to promote transparency within the health insurance industry. As of December 27, 2020, this particular law prohibits group health plans from entering into gag clause agreements with health care providers or other members of the medical and health insurance communities that restrict the plan from sharing certain information for specific purposes. This law primarily applies to medical/Rx coverage.
   
   A primary purpose of the law is to ensure that health care providers and other third parties cannot block or limit access to information needed for other transparency laws and rules, such as health care provider cost and quality information necessary for consumer pricing transparency tools.
   
   The initial attestation requires a group health plan to attest that it has not agreed to a prohibited gag clause from December 27, 2020 – December 31, 2023.
   
   
2. How would I know if my plan has a prohibited gag clause?
   
   Most employers/plan sponsors do not directly contract with health care providers. Insurers, third party administrators (TPAs), and pharmacy benefit managers (PBMs) contract with providers when building and maintaining provider networks used by plans. If an employer/plan sponsor needs to complete an attestation, it will need its insurer/TPA/PBM to confirm that it does not have any prohibited gag clause arrangements with providers in the plan’s network.
   
   Employers/plan sponsors do directly contract with third party vendors and need to avoid entering into prohibited gag clause arrangements with them. This should rarely be an issue.
   
   
3. Do I have any responsibility for this attestation?
   
   You might, and this is more likely if your medical/Rx coverage is self-insured. Insurance carriers and employers/plan sponsors both have compliance liability for fully insured coverage. By contrast, employers/plan sponsors are solely liable for self-insured coverage. Insurers, TPAs, and PBMs began sending emails about gag clause attestation to their clients earlier this year, although they were easy to overlook.
   
   It appears that most or all of the major medical insurers have agreed to complete the attestation on behalf of their fully insured clients. If your insurer submits the attestation on your behalf, you do not need to do anything.
   
   You may need to complete the attestation if your medical/Rx coverage is self-insured (or was self-insured at any point during the reporting period). Many TPAs/PBMs are unwilling to complete attestation for their self-insured clients or indicated in earlier emails that they would only complete the attestation if the client opted-in by a particular date. In many instances, the deadline to opt in has already passed.
   
   
4. How do I know if I am responsible for attestation?
   
   You may already know due to an email or other communication between yourself and your insurer, TPA, and/or PBM.
   
   Marsh McLennan Agency proactively reached out to the insurers, TPAs, and PBMs doing business with our clients. We are compiling their positions on whether they will complete the attestation for our clients and if there are any conditions or limitations. We also asked each of them to confirm that they have complied with the Prohibition on Gag Clauses rule at all times since December 27, 2020. The vendors are aware of the compliance requirements, and we expect that all (or nearly all) will indicate compliance.
   
   
5. Does it matter if my plan or vendors changed during the reporting period?
   
   It doesn’t matter as much as you might think. We are aware that a number of our clients changed vendors during the initial reporting period or perhaps moved from fully insured status to self-insured (or vice versa).
   
   The attestation process does not require a plan to identify its vendors or the years they provided service to the plan, and there is no actual mechanism to do so. If you must complete the attestation, you are simply attesting that your plan complied during the period to the best of your knowledge (backed up by the information gathering Marsh McLennan Agency is doing on your behalf described in #4).
   
   Insurers completing the attestation will do so for their entire book of business across the initial reporting period. If you changed insurers during this period, you will appear in more than one insurer’s attestation. It does not hurt you if you appear in more than one attestation during a reporting period.
   
   We suspect TPAs/PBMs will only perform attestation for their current clients. Although the attestation does not have a mechanism to separately report a year or years within the initial reporting period, it may be prudent to complete your own attestation if you are self-insured and changed TPAs during that period. Again, it does not hurt you if you appear in more than one attestation during a reporting period.

If you have questions, or would like to speak to a specialist at Marsh McLennan Agency, please contact us.