The Consolidated Appropriations Act of 2021 included a provision that prohibits group health plans and health insurance carriers from entering into agreements with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan or issuer from:
 

(1) providing provider-specific cost or quality of care information or data, through a consumer engagement tool or any other means, to referring providers, the plan sponsor, participants, beneficiaries, or enrollees, or individuals eligible to become participants, beneficiaries, or enrollees of the plan or coverage;
 

(2) electronically accessing de-identified claims and encounter information or data for each participant, beneficiary, or enrollee in the plan or coverage upon request and consistent with the privacy regulations promulgated pursuant to section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and the Americans with Disabilities Act of 1990 (ADA), including, on a per claim basis—
 

(i) financial information, such as the allowed amount, or any other claim-related financial obligations included in the provider contract;
(ii) provider information, including name and clinical designation;
(iii) service codes; or
(iv) any other data element included in claim or encounter transactions; or
 

(3) sharing information or data described in (1) and (2), or directing such information be shared, with a business associate, as defined in 45 CFR 160.103, consistent with applicable privacy regulations promulgated pursuant to section 264(c) of HIPAA, GINA, and the ADA.
 

The above information is referred to as Gag Clauses. Each year, employers or health insurance carriers will need to submit an attestation that their plan(s) do not include any Gag Clauses. This will be done through an online form that can be accessed here. The attestation will be due by December 31st of each year with the first attestation due by December 31, 2023. Employers should be on the lookout for communications from their health insurance provider to determine who will be responsible for the attestation. The attestation does not apply to stand-alone dental or vision plans, Health Reimbursement Arrangements (HRAs), or Flexible Spending Accounts (FSAs).