Compliance News Week Ending January 17, 2025

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Agency FAQs - Gag Clause Attestation

Agency FAQs – Gag Clause Attestations

This week, the Departments of Labor, Health and Human Services, and the Treasury, along with the Office of Personnel Management jointly issued a set of FAQs addressing, amongst other things, compliance with the gag clause prohibition and associated attestation requirements.

The FAQs clarify that the gag clause prohibition requirements apply beyond a plan's direct contract with a carrier, TPA or other service provider to any "downstream agreements" that the carrier, TPA or other service providers may enter into to administer the plan's network.

Plan sponsors will be expected to add clauses to contracts with carriers, TPAs and other service providers prohibiting them from entering into downstream contracts that contain gag clauses.

The FAQs also provide further clarification, including examples, on contract provisions restricting access to de-indentified information that are prohibited by the gag clause prohibition.

For future attestations covering group health plan contracts in place as of January 14, 2025 and later, plan sponsors must attest to compliance in accordance with the updated guidance or specify any non-compliance on the attestation form submitted.

This guidance is found in the Department of Labor's ACA Part 69 FAQs Question #s 6-9 starting on Page 13.

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