Will the DOL Step in to Provide Relief for Complying with the Gag Clause Prohibition?

Virtually every year over the past two decades, Congress has considered an end-of-year legislative package of spending bills that inevitably turns into a vehicle on which a whole host of non-spending-related legislative measures ride. This annual, end-of-year legislative package – referred to by many as the annual “Christmas tree legislation” – is notorious for including measures that range from obscure law changes that find their way into the bill in the dark of night, to significant policy changes that have been months in the making but could not pass on their own. 

Examples of significant policy changes enacted through the annual Christmas tree legislation include measures like the Advanced Explanation of Benefits (AEOBs), the requirement to complete and submit Reports on Prescription Drug Coverage, and the Gag Clause Prohibition, which were transparency-related measures included in the Consolidated Appropriations Act (CAA) that was passed by Congress on December 21, 2020 and signed into law on December 27, 2020.

Unfortunately, we are all still grappling with how to comply with the CAA’s transparency-related measures today. In particular, difficulties over complying with the “attestation” requirement under the Gag Clause Prohibition is reaching a fever pitch. 

Problems with Complying with the Gag Clause Prohibition Attestation 

As I have explained in previous blog posts, starting with Part 1 of Actions to Increase the Transparency of Medical Prices and Health Claims Data, the CAA’s Gag Clause Prohibition requires group health plans and their plan sponsors to submit an attestation to the Federal government, “attesting” that no prohibited “gag clauses” are present in agreements between (1) the group health plan and, for example, (2) the owner of a provider network (e.g., those entities “renting” provider networks to a self-insured plan).   

Importantly, the first attestation submission is due this coming December 31 (less a month from now).   

Just as important, group health plans and their plan sponsors believe that they cannot lawfully attest to the Federal government that their agreements are free of restricted gag clauses, which is a BIG problem. 

On the one side of this problem are owners of the provider network who continue to refuse to share, for example, quality information and health claims data with the group health plan and its plan sponsor.   

Here, the owner of the provider network will point to agreements they have with entities other than the group health plan itself as the source for restricting the data (e.g., the provider network owner points to agreements it has with the plan sponsor or other third-parties hired to perform plan administration functions, which include contractual restrictions). Here, the provider network owner contends that these “downstream” agreements are not technically with the group health plan, and thus, the Gag Clause Prohibition does not apply.   

In contrast, group health plans and their plan sponsors believe that the foregoing agreements fall squarely within the Gag Clause Prohibition. In particular, plans and their sponsors believe that any agreements that involve the plan sponsor or a third-party hired to perform plan administration functions is an agreement with the group health plan, and thus, the Gag Clause Prohibition applies. 

This conflict of opinion forces plans and their sponsors into one of two decisions: 

• Refrain from submitting an attestation because they believe they are not compliant with the law.   

-OR- 

• Submit an attestation that they believe to be incorrect. 

In either case, plans and their sponsors expose themselves to monetary penalties or a fiduciary breach.  This is certainly something that Congress never intended – or even contemplated – when enacting the Gag Clause Prohibition and this attestation requirement back in December 2020. 

This brings me back to the Christmas tree legislation I noted above. 

Will the Christmas Tree Legislation Happen This Year? 

In short, the annual Christmas tree legislation is NOT happening this year. This is because shortly before the Thanksgiving holiday, Congress agreed to postpone the upcoming fight over funding the government and spending levels to January 19 and February 2 of next year, instead of the typical fight occurring around the upcoming Christmas holiday. 

Why is this important? 

Well, if Congress was in a position to pass the Christmas tree legislation this year, Congress could delay the December 31 Gag Clause Prohibition attestation submission date by six months or a year.   

Congress could even go so far as to resolve the conflict I described above by clarifying that the Gag Clause Prohibition extends to agreements between (1) an owner of the provider network and (2) the plan sponsor or a third-party hired to perform plan administration functions.   

Congress could also impose penalties on an owner of a provider network that fails to eliminate prohibited gag clauses in the above noted agreements, preventing the group health plan and its sponsor from lawfully attesting. 

But again, none of that is going to happen before December 31. 

What Now?  

Well, the Department of Labor (DOL) must take action to prevent group health plans and their plan sponsors from subjecting themselves to liability for either (1) failing to submit an attestation or (2) submitting an incorrect attestation.   

The DOL can do this by issuing guidance delaying the December 31 attestation submission date.  Alternatively, the DOL can announce a one-year non-enforcement period for those plans and their sponsors that believe – in good faith – that prohibited gag clauses are still present in their agreements.   

But will the DOL step in? And if so, when? 

The information provided does not, and is not intended to, constitute legal advice; instead, all information and content herein is provided for general informational purposes only and may not constitute the most up-to-date legal or other information.