By the end of 2023 all Plan Sponsors MUST submit a fiduciary attestation to the DOL saying, “I’ve had no Gag Clauses since 12/27/2020.” Trouble is there is not a plan sponsored managed care plan on the entire planet that can honestly attest to that.
Most plan sponsors have never read their ASO Agreements. Those few who do would never sign one without demanding revisions. Try asking any political subdivision for a copy of their Blue Cross ASO Agreement and you will end up getting a letter from the Texas Attorney General denying your request in whole or in part. That’s an example of a government backed Gag Order that the government now says is illegal.
The Gag Clause Prohibition Compliance Attestation (GCPCA) requirement “prohibits group health plans and health insurance issuers offering group health insurance coverage from entering 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 or issuer from……………….”—Gag Clause Prohibition Compliance Attestation | CMS
What is a “gag clause”?
In general, for the purposes of Code section 9824, ERISA section 724, and PHS Act section 2799A-9, 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. Gag clauses in this context might be found in agreements between a plan or issuer and any of the following parties:
§ a health care provider;
§ a network or association of providers;
§ a TPA; or
§ another service provider offering access to a network of providers.
What should an interested party do if they suspect a violation of the gag clause prohibition or related requirements regarding attestation?
Interested parties with concerns about a plan’s or issuer’s compliance with the gag clause prohibition may contact the No Surprises Help Desk at 1-800-985-3059, submit a complaint at www.cms.gov/nosurprises/policies-and-resources/providers-submit-a-billing-complaint or contact the applicable state authority. For ERISA plans, individuals may contact DOL for help at www.askebsa.dol.gov or 1-866-444-3272.
