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Guidance Released on the Consolidated Appropriations Act, 2021 Gag Clause Prohibition and Annual Attestation

On February 23, 2023, the Department of Labor, Health and Human Services, and the Treasury (Departments) jointly issued FAQ guidance addressing provisions of the Consolidated Appropriations Act, 2021 (CAA-21).

The provisions prohibit health plans and issuers from entering into contracts with healthcare providers, third-party administrators (TPAs) or other service providers that would preclude certain disclosures of provider-specific cost or quality-of-care information and de-identified claims.

The FAQs require health plans and health insurance issuers to submit their first attestation of compliance with the CAA-21’s prohibition of gag clauses by December 31, 2023. The first attestation will cover the period beginning December 27, 2020, through the date of attestation.
Subsequent attestations, covering the period since the last attestation, are due by December 31 of each following year.

Prohibition on Gag Clauses

The CAA-21 generally prohibits group health plans or issuers offering group health insurance from entering into agreements with healthcare providers, TPAs, or other service providers that include certain gag clause language. The FAQs explain that a gag clause is a “contractual term that directly or indirectly restricts specific data and information that a plan or issuer can make available to another party.”

Specifically, these contracts cannot restrict a plan or issuer from:

  • Providing provider-specific cost or quality-of-care information or data to referring providers, the plan sponsor, participants, beneficiaries, or enrollees (or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage);
  • Electronically accessing de-identified claims and encounter information or data for each participant, beneficiary, or enrollee upon request and consistent with privacy rules under the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA), and the Americans with Disabilities Act (ADA); and
  • Sharing information or data described above or directing such information to be shared with a business associate, consistent with applicable privacy rules.


The CAA-21 also requires group health plans and issuers to annually attest to their compliance with the gag clause prohibition. This requirement applies to fully insured and self-insured group health plans, including ERISA plans, non-federal governmental plans, and church plans. Additionally, this requirement applies regardless of whether a plan is considered grandfathered under the ACA. Attestation is not required for excepted benefits, and the agencies will not enforce the requirement against health reimbursement arrangements (HRAs) or other account-based plans.

Steps for Plan Sponsors

For fully insured group health plans, the health plan and the issuer are each required to submit a gag clause compliance attestation annually. However, when the issuer of a fully insured group health plan submits a gag clause compliance attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.

Employers with self-insured health plans can satisfy the gag clause compliance attestation requirement by entering into a written agreement under which the plan’s service provider, such as a TPA, will provide the attestation on the plan’s behalf. However, even if this type of agreement is in place, the legal requirement to provide a timely attestation remains with the health plan.

In preparation for the first attestation deadline, December 31, 2023, the plan sponsor and issuer should review the instructions and technical guidance for submission. The Departments launched a website through the Centers for Medicare and Medicaid Services for health plans and issuers to submit their gag clause compliance attestations. The Departments have also provided instructions for submitting the attestation, a system user manual, and a reporting entity Excel template for plans and issuers to submit the required attestation, all of which are available here.

Looking for additional information as you navigate your employer compliance requirements? Check out this blog: Affordable Care Act (ACA) Reporting Cheat Sheet: Reporting Made Easy.