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Gag Clause Prohibition: What Employers Need to Know

I’ve always said that education is the key to success. More information is always helpful, especially when making a major purchase. Let's say you have decided to upgrade your home. Maybe you need new cabinets or appliances in the kitchen. Or do you need more space now and have decided to finish your basement, or add a new bathroom? One of your first steps would be to get estimates, perhaps from several companies. Then you would look into their quality of work, and reputation. Only with all the information would you make a final decision and move forward. Healthcare has not been handled that way, historically. Would you just pick the first company recommended for your home remodel and proceed before even looking at price and quality? Never!

In recent years, legislative measures have been enacted with the objective of endowing individuals with more comprehensive information, empowering them to make informed decisions as healthcare consumers. Now, more than ever the possibility of getting price and quality information about your medical procedure beforehand is a possibility!

Consolidated Appropriations Act (CAA) was signed into law in March 2020 as part of The Coronavirus Aid, Relief, and Economic Security (CARES) Act during the pandemic. Transparency in Coverage (TIC) Rule and Gag Clause Prohibition Compliance Attestation (GCPCA) are part of that. These laws are very broad in purpose. I will focus on how it has affected cost transparency for members and employers.

The Transparency In Coverage Rule (TIC)

This rule is designed to empower members to be able to shop and compare providers based on both quality and value to help them better understand cost prior to receiving care. The TIC Rule has two components.

Machine Readable File: Most carriers have already provided this. It includes details about in-network rates and approved amounts. Importantly, it doesn't contain any personal member data. These files are quite large and not easily understood by members. The purpose here is to make this information accessible for digital comparisons.

  • Fully Insured: Carriers will generally take care of this for Fully Insured Groups.

  • Self-funded: Employer plans may need to post information. Please contact your carrier for more details, as they each handle it a bit differently.

Internet-based price comparison tool This tool uses data from the files to help individuals estimate their cost-sharing responsibilities.

  • Deadlines for Employers and Group Sponsors have been delayed for this tool, but it is expected that Carriers will take responsibility for the tool.

Gag Clause Prohibition Compliance Attestation (GCPCA)

These provisions, as part of the CAA, prevent group health plans and issuers from making restrictive "gag clause" agreements in contracts. A "gag clause" limits the specific information a plan or issuer can share with others, either directly or indirectly. This requirement applies to healthcare providers, carriers, associations, networks, Third-Party Administrators (TPAs), and various groups.

Here is a list of what cannot be restricted by such contracts or agreements:

  • Details about a specific provider's cost or quality of care.

  • De-identified information related to claims and patient encounters.

  • Information regarding approved amounts and financial obligations linked to claims.

  • Healthcare provider names and their professional titles.

  • Service codes used to categorize medical procedures.

For example, if there's a contract between a Third-Party Administrator and a Group Health Plan that pays providers at a "Point of Service Rate," it cannot contain language preventing the Group Health Plan from disclosing these rates to its participants (members), even if the Third-Party Administrator considers these rates proprietary.

What do employers need to know about the Deadline?

Employers need to submit their initial attestation by December 31, 2023, for the period starting on December 27, 2023.

Who Needs to Attest?

  • Employers: This requirement applies to fully insured and self-insured group health plans, including those governed by ERISA, non-federal governmental plans, and church plans subject to the tax code.

  • Carriers & TPAs: Health insurance issuers, which encompass Group, Individual, Student, and Association plans.

Who Does Not Need to Attest?

  • Plans with Only Excepted Benefits

  • Short-Term Plans

  • Medicare and Medicaid Plans

  • State CHIP Plans

  • TRICARE Plans

  • Indian Health Plans

  • Account-Based Plans (such as HRAs, etc.)

How Can Employers Attest?

Employers can submit attestations themselves as the plan sponsor. Alternatively, they can authorize the TPA or issuer (carrier) to submit on their behalf. For self-insured plans, it's important to note that legal responsibility for attestation falls on the plan sponsor, which is typically the employer.

As of now, most carriers have indicated that they will handle the attestation process for fully insured plans. However, for Level Funded and Self-Funded plans, most carriers will send a confirmation of compliance directly to the customer. Employer Groups can then use this confirmation to submit their own attestation. (See link above)

What if I don’t comply?

If you fail to file, there could be serious consequences, such as:

· A daily excise tax of $100 as per the Internal Revenue Code.

· Civil penalties under ERISA.


Complying with these new disclosure requirements under the CAA can be challenging for employers. In recent years, many new reports, disclosures, and IRS documents have become mandatory. Yet, it is crucial to recognize that these transparency rules hold the potential to empower employees and members, furnishing them with valuable tools to make wise and informed financial choices.

Let it be etched in your consciousness: Knowledge is power!

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