Benefits Q&A: What Do Employers Need to Know About Attestation and Gag Clauses?

March 30, 2023

Julie answers April's Q&A over what employers need to know about new requirements of the attestation filing and gag clauses.

Benefits Q&A: What Do Employers Need to Know About Attestation and Gag Clauses?


I’ve been reading articles about a new requirement for group health plans to file some sort of attestation that they don’t restrict the disclosure of information about medical costs and other information. I don’t really understand what this requires or even how to know whether we are in compliance.

As a self-insured plan, we generally rely on our third-party administrator to make sure we are in compliance with these types of legal requirements. Will we be able to do that with this requirement as well?


In 2020, Congress passed the Consolidated Appropriations Act (CAA) which included a number of new requirements that promote transparency in the health care and health insurance industries. Part of the CAA prohibits group health plans (meaning the employer) and issuers (meaning the carrier) from entering into agreements that would restrict certain information from being made available to health care providers, plan sponsors, individuals who are enrolled (or eligible to enroll) in a health plan, and others.

In general, this means employers and their carrier or TPA need to openly share and disclose information regarding the costs of health care, quality of care data for medical facilities and providers, and other similar types of information. For example, a TPA contract providing that the employer would be given access to provider-specific cost and quality-of-care information “at the discretion of the TPA” would be considered a prohibited gag clause.

As to the attestation you’re asking about, the requirement is to file it with the Centers for Medicare & Medicaid Services (CMS) each year no later than December 31st (starting in 2023). However, this attestation is likely to be completed by your carrier or TPA.

Next steps

Employers are legally obligated to ensure that their carriers, TPAs, and other health plan service providers satisfy the CAA’s prohibition on gag clauses. It is our belief that the carriers and TPAs we work with are already in compliance.

In addition, employers should be prepared to submit the attestation – or make sure their carrier or TPA is doing it – by December 31, 2023. While there is a remote chance that you will be required to file the attestation, we will be working with your TPA (and other carriers and TPAs) to make sure they are doing so on your behalf.


About The Author

Julie Athey, J.D.

Julie Athey, J.D.
Email As Director of Compliance & Legal, Julie has more than 20 years of experience in compliance and law. Julie provides in-depth hands-on compliance training, advice and consulting for benefits and HR professionals. She has authored numerous manuals for HR professionals – including FMLA Compliance: Practical Solutions for HR and Wage and Hour Compliance: Practical Solutions for HR. Julie is also a frequent presenter at seminars, webinars and audio conferences on a variety of benefits, employment law and human resources topics.