Compliance News | March 10, 2023
The No Surprises Act (the Act) bans “gag clauses” that prevent disclosure of price or quality information in agreements between health plans and certain service providers. In addition, the Act requires plan sponsors to attest annually that they comply with this requirement.
The Departments of Labor, Health and Human Services and Treasury (collectively, the Departments) have released guidance concerning:
The Act prohibits health plans and insurance issuers from entering into contracts with health care providers, provider networks, third-party administrators (TPAs) or other service providers that would restrict the plan from providing, accessing or sharing certain information. Specifically, contracts cannot restrict a plan from:
Generally, 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.
In the new guidance, the Departments provide two examples of gag clauses prohibited by the No Surprises Act:
The guidance does not provide additional answers to common questions about gag clauses, such as whether a clause in a subcontractor agreement with a service provider would also be subject to the rule. Although the guidance does not give examples of specific contractual provisions that would violate the Act, it states that to the extent a term in a contract, either directly or indirectly, prevents a plan or issuer from providing, accessing or sharing the information or data, as provided for under the statute, that term in the contract violates the gag clause prohibitions and is prohibited. However, the guidance clarifies that health care providers, networks, TPAs and other service providers may place reasonable restrictions on the public disclosure of such information.
The Departments require the first gag clause attestation to be submitted by December 31, 2023, covering the period beginning December 27, 2020 (the effective date of the No Surprises Act’s gag-clause prohibition), through the date of attestation. Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each following year.
The Departments have created a website for submitting s attestations. The guidance contains instructions and a link to the Gag Clause Prohibition Compliance Attestation methodology for submitting an annual attestation of compliance with the gag clause prohibition. Attestations will be submitted at this link. Instructions and a system user manual for submitting attestations are available here.
Plan sponsors should work with their legal counsel to ensure any contracts with TPAs or other network service providers do not contain gag clauses, as well as prepare to complete the attestation by December 31, 2023. Self-insured plans may enter into written agreements with service providers to complete the attestation on their behalf, but the plan remains legally responsible for compliance. Fully insured plans may provide the attestation on behalf of those plans. Plans that fail to comply may face a civil penalty of up to $100 per day, adjusted annually, for each individual affected by a violation.
The No Surprises Act has an extensive list of healthcare price transparency requirements for group health plans that we’ve summarized in a timeline.
This page is for informational purposes only and does not constitute legal, tax or investment advice. You are encouraged to discuss the issues raised here with your legal, tax and other advisors before determining how the issues apply to your specific situations.
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