By: HUB’s EB Compliance Team

The Centers for Medicare and Medicaid Services (“CMS”) have released their 2024 updates to the Gag Clause Prohibition Compliance Attestation materials, including the instructions, the user manual, and the template for completing the attestation. The changes reflect some comments and challenges with the attestation template that emerged over the last few years.

Background

The gag clause prohibition was effective December 27, 2020. In general, the gag clause prohibition says a health care plan or insurer may not enter into an agreement with a health care provider, network or association of providers, third party administrator (“TPA”), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan from either:

  • providing provider-specific cost or quality of care information or data through a consumer tool or any other means, to referring providers, the plan sponsor, participants, or individuals eligible to become participants; and
  • electronically accessing de-identified claims and encounter information or data.

The provision’s goal is to allow group health plans and insurers access and be able to publish cost and quality information as part of a broader push for transparency in health coverage. 

Plans and issuers must submit the attestation annually to the Departments of Labor, Treasury, and Health and Human Services, essentially stating that the plan/insurer is in compliance with the gag clause prohibition. The attestation is made via a web portal maintained by CMS, which is a part of the Department of Health and Human Services.

2024 Attestation Changes

In releasing updated instructions and an updated user manual, CMS highlighted the following changes, some of which merely relate to definitions, while others relate to the specifics of the attestation. Specifically:

  1. CMS added a webform selection for the “attestation year.” Attestations made in 2024, for example, have an attestation year of 2024 even though the attestation period spans from the end date of the 2023 attestation to the attestation date in 2024.
  2. CMS also added webform and template fields for the “attestation period,” or the date range that the attestation covers.
  3. Under Step 1 Submitter Contact Information, they expanded the employer “plan types” list to include 3 categories of group health plans:
    1. ERISA group health plan (GHP) or sponsor of ERISA plan, including a plan sponsored or established by a union
    2. (Non-Federal) governmental group health plan
    3. Church plan
  4. “Reporting Entity” was changed to “Responsible Entity.”
  5. In Step 3, the Responsible Entity types were expanded in the instructions to clarify that an ERISA group health plan, or the sponsor of an ERISA plan, includes a plan sponsored or established by a union. The “Responsible entities” definition was also modified to clarify the following terms:
    1. Third-party administrator (TPA)
    2. Pharmacy benefit manager (PBM)
    3. Behavioral health network manager (BHN)
    4. Other third-party service provider, such as an agent.
  6. CMS clarified labels in the webform and template regarding the following types of provider agreements:
    1. Medical network
    2. Pharmacy benefit manager network
    3. Behavioral health network
    4. Other
  7. A text box was added to the webform to allow submitters to enter “Other Limitations.”
  8. CMS modified its attestation language to remove any forward-looking agreement actions.
  9. A Definitions section was added in the appendix to the instructions.
  10. Finally, they modified the attestation language to accommodate the date range at issue and other information provided through the submission process.

Takeaways

These changes may aid in reporting for those employers who are submitting their Gag Clause attestation on their own. Employers who are attesting on their own should review the CMS instructions, user manual, and attestation template closely and note any changes from prior years.

If you have any questions, please contact your HUB Advisor. View more compliance articles in our Compliance Directory.

NOTICE OF DISCLAIMER

Neither Hub International Limited nor any of its affiliated companies is a law or accounting firm, and therefore they cannot provide legal or tax advice. The information herein is provided for general information only, and is not intended to constitute legal or tax advice as to an organization’s or individual's specific circumstances. It is based on Hub International's understanding of the law as it exists on the date of this publication. Subsequent developments may result in this information becoming outdated or incorrect and Hub International does not have an obligation to update this information. You should consult an attorney, accountant, or other legal or tax professional regarding the application of the general information provided here to your organization’s specific situation in light of your or your organization’s particular needs.