This is a reminder that the attestation of compliance for employer-sponsored group health plans is due by December 31, 2025. This is an annual requirement, with each attestation covering the period from the date the previous attestation was filed through the current submission date.
Marsh McLennan Agency (MMA) published an updated guide 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.
A Guide to 2025 Gag Clause Attestation
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 MMA client service team.
Frequently Asked Questions
1. What’s new for 2025?
On January 14, 2025, the Departments of Labor, Health and Human Services, and Treasury, as well as the Office of Personnel Management (“Departments”), issued FAQs about Consolidated Appropriations Act, 2021, Implementation Part 69. Updates related to the gag clause attestation are as follows:
- Downstream Agreements: A plan sponsor can violate the gag clause prohibition even when it is not a party to the agreement. The Departments expect that plan sponsors will include provisions in their direct contracts prohibiting TPA and other service providers from executing downstream agreements with other parties that restrict the plan or issuer from sharing information or data.
- De-Identified Claims: An agreement has a prohibited gag clause if it permits the plan or insurer to share de-identified claims data with a business associate only at the discretion of the provider, network, TPA or other service provider. The FAQs provide multiple examples on prohibited restrictions relating to de-identified claims and encounter information or data.
- Reporting Violations: The FAQs clarify that if a plan sponsor is aware of the presence of any prohibited language, they must still submit the annual filing and use the “Additional Information” text box to identify the non-compliant provision. The plan sponsor should include information about:
- Any prohibited gag clauses that a TPA or service provider has refused to remove;
- The name of the TPA or service provider whose agreement contains the prohibited gag clause;
- Conduct by the TPA or service provider that shows they interpret the agreement to contain a prohibited gag clause;
- Information on the plan's requests that the prohibited gag clause be removed from such agreement; and
- Any other steps the plan or issuer has taken to come into compliance.
2. 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 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 annual attestation requires a group health plan to attest that it has not agreed to a prohibited gag clause since the prior year’s gag clause attestation.
3. 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.
4. 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 the gag clause attestation to their clients earlier this year, although they are 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 the attestation for their self-insured clients or indicate in their emails that they will only complete the attestation if the client opts in by a particular date. If the deadline to opt in has already passed, you will likely need to complete the attestation yourself for your self-insured medical Rx coverage.
5. 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. The vendors are aware of the compliance requirements, and we expect that all (or nearly all) will indicate compliance with the Prohibition on Gag Clauses rule during 2025.
If you have not received an email or other communication from your insurer, TPA, and/or PBM regarding the attestation, or have any questions, please do not hesitate to contact your MMA client service team.
6. 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 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 months 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 MMA is doing on your behalf described in #4).
Insurers completing the attestation will do so for their entire book of business across the 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 the reporting period.
Some TPAs/PBMs may only perform attestation for their current clients. If you remained self-insured and your new TPA is attesting on your behalf, it is only attesting to its own compliance and not for your prior TPA. You may wish to consider completing your own attestation to protect yourself, particularly if your new TPA is only attesting for the partial year it administered your plan. Remember, it does not hurt you to appear in more than one attestation during the reporting period.
