This insight provides brief background about these requirements and includes links to where you can learn more about them. Segal can provide assistance with the gag clause attestation or the price comparison tool.

The gag clause attestation

The Consolidated Appropriations Act, 2021 (CAA) requires plan sponsors to attest annually that they comply with the law’s prohibition against gag clauses in agreements between health plans and healthcare providers, provider networks, third-party administrators or other service providers that prevent disclosure of price or quality information. The attestations are completed electronically. All instructions are available online.

Earlier this year, the Departments of Labor, Health and Human Services and Treasury (collectively, the Departments) released guidance on what constitutes a gag clause and how plan sponsors perform the attestation. We summarized that guidance and discussed the implications for plan sponsors in our March 10, 2023 insight, “First ‘Gag Clause’ Attestations Are Due by the End of 2023.”

The internet-based price comparison tool

The CAA also requires plans to offer a price comparison tool on their website that allows individuals to compare the amount of cost sharing they would be responsible for paying with respect to a specific item or service by a provider. The CAA requirement is largely duplicative of a requirement in the transparency rule, which the Departments issued in 2020, that required non-grandfathered health plans and insurers to publish their negotiated rates and allowable out-of-network charges on a public website. The information was required to be available for plan years beginning on or after January 1, 2023 for 500 items and services identified by the Departments. However, beginning on January 1, 2024, the public website must include information about all items and services, not just the top 500 services.

To learn more about these transparency requirements, see our November 5, 2020 insight, “Final Transparency Rule for Group Health Plans and Insurers.”

Implications of failure to comply

Plans that fail to file a gag clause attestation by the deadline or fail to have the price comparison tool online may be subject to enforcement action under ERISA and the Public Health Service Act.