What Is a Gag Clause?
A gag clause is a contract provision that restricts a plan from: (1) accessing and sharing claims data with plan fiduciaries; (2) sharing de-identified claims data with third parties for plan administration; or (3) sharing provider-specific cost and quality information with plan participants. Gag clauses prevent employers from using their own data to manage their health plan — which is why they are prohibited.
Annual Attestation
Plans must submit an annual attestation to CMS confirming they have not entered into gag clause contracts. The attestation is submitted through the CMS HIOS portal. For self-funded plans, the employer submits the attestation — or delegates to the TPA or carrier. The attestation is due December 31 each year.
Contract Review
Pro Tip
Before submitting the annual attestation, review all contracts with TPAs, carriers, PBMs, and other vendors for gag clause provisions. Common gag clause language includes: "Employer shall not disclose provider-specific pricing information," "Claims data may not be shared with third parties," and "Network rates are confidential." If you find gag clause language, work with the vendor to remove it before submitting the attestation.