The attestation is not the end of the story for employers sponsoring group health plans. An attestation by an insurance issuer on behalf of its insured clients will satisfy the client-plan’s obligation. However, a self-insured plan remains legally responsible for satisfying the attestation requirement on time and accurately. Each vendor may file an attestation on behalf of all of its clients, including plans with fully insured coverage and self-insured plans. The Departments permit group health plans to delegate the gag clause attestation to their service providers (e.g., their claims administrator, TPA, or pharmacy benefits manager (PBM)). Plans sponsors already dreading yet another reporting obligation may breathe easy here. Below, we discuss recently issued guidance on the attestation process provided in a set of tri-agency FAQs. Subsequently, plans must file attestations annually by the end of each year. The first attestation will cover the period beginning on Decem(or, if later, the effective date of the plan or health insurance coverage) through the date of attestation. The CAA, 2021 prohibits “gag clauses” in contracts that health plans and insurance issuers enter with health care providers, networks of providers, third-party administrators (TPAs), or other similar service providers. The attestation is part of the transparency initiatives of the Consolidated Appropriations Act, 2021 (CAA, 2021). Group health plans (and other reporting entities) must, for the first time, submit to the Departments of Labor, Treasury, and Health & Human Services (Departments), by December 31, 2023, an attestation of their compliance with the prohibition on gag clauses.
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