Gag Clause Attestation Deadline Quick Approaching – Danger Managers

October 23, 2025 – By: HUB’s EB Compliance Crew

As 2025 involves an finish, plan sponsors of ERISA, church and governmental plans ought to submit their Gag Clause Prohibition Attestation (“Gag Clause Attestation”) to the Facilities for Medicare and Medicaid Companies (CMS) no later than December 31, 2025.

The attestation is submitted by way of the CMS’ HIOS web site and experiences a plan sponsor’s Gag Clause compliance for the 2025 calendar yr (“the testifying yr”). For extra details about this mandate, which has been in impact since 2022, please discuss with this HUB Alert: Gag Clause Prohibition Attestation.

What do plan sponsors attest to or certify below the Gag Clause?

The Gag Clause requires group well being plan sponsors to attest that throughout the testifying yr, they didn’t enter into an settlement with a well being care supplier, community, affiliation of suppliers, Third Social gathering Administrator (TPA), Pharmacy Advantages Supervisor (PBM) or different service supplier providing entry to a community of suppliers that may straight or not directly prohibit the plan from:

1. Making provider-specific price or high quality of care data or information obtainable to eligible contributors, beneficiaries and enrollees
2. Electronically accessing de-identified claims and encounter data or information for every coated participant upon request or
3. Sharing the data famous in 1 and a couple of above or directing such information be shared, with a enterprise affiliate

As mentioned in our January 2025 Alert, below newer steering issued by the DOL, Treasury Division and HHS (Tri-Companies) in FAQ 69, plan sponsors should additionally attest that their contracts don’t comprise any of the next clauses for the 2025 calendar yr:

1. Downstream Agreements that restrict a plan’s entry to data: A plan could not enter into an settlement with a TPA or different service supplier, if that TPA or supplier subcontracts the plan or community administration to a 3rd social gathering, and that settlement with the third social gathering (the “downstream settlement”) prohibits the plan from offering, accessing or sharing the data famous in objects 1 and a couple of (within the record above).
2. Restrictions on sharing de-identified claims information with a enterprise affiliate: The contract can be deemed to incorporate a gag clause if the flexibility to share de-identified claims information is left to the discretion of the well being care supplier, community, TPA, affiliation of suppliers or different vendor providing entry to a community of suppliers.
3. Restrictions on the Entry to De-Recognized Claims and Info or Knowledge, as A part of a Claims Audit or Assessment. Plan sponsors should be sure that their service agreements don’t:

• Restrict entry to a statistically vital or the “minimal crucial” variety of de-identified claims
• Restrict the scope of entry to the information for particular, slender functions (similar to limiting entry solely to the context of an audit)
• Unreasonably restrict the frequency of claims opinions (e.g., not more than as soon as per yr)
• Restrict the quantity and varieties of de-identified claims {that a} plan or issuer could entry
• Limit the information components of a de-identified declare {that a} plan or issuer could entry and
• Present entry to de-identified claims information solely on the TPA’s or service supplier’s bodily premises

Are plan sponsors nonetheless required to finish and file a Gag Clause Attestation if their agreements comprise a number of gag clauses?

Sure, the group well being plan sponsors famous above are nonetheless required to finish and file a Gag Clause Attestation by way of the HIOS web site if their service agreements comprise a number of gag clauses. On this state of affairs, the plan sponsor might want to full the Further Info field in Part 3, (“Accountable Entity’s Particulars”) utilizing the next data:

• Any prohibited gag clauses {that a} service supplier has refused to take away
• The identify of the TPA or service supplier with which the plan has the settlement containing the prohibited gag clause
• Conduct by the TPA or service supplier that reveals the service supplier interprets the settlement to comprise a prohibited gag clause
• Info that reveals that the plan sponsor requested that the prohibited gag clause be faraway from the settlement and
• Every other steps the plan has taken to come back into compliance with the elimination of gag clauses

Be aware that the textual content field is restricted to 1000 phrases, so the plan sponsor or plan consultant finishing the attestation should be succinct. Failure to finish a Gag Clause Attestation could end in enforcement motion from regulatory entities.

If an insurance coverage provider or third-party vendor completes a Gag Clause Attestation on behalf of the plan sponsor, is the plan sponsor required to finish a separate Gag Clause Attestation?

No, if the insurance coverage provider or third-party vendor attests for all agreements sponsored by the plan sponsor, the plan sponsor just isn’t required to file a separate attestation. For instance, if a medical insurance coverage provider information an attestation for all insured medical plans provided by a plan sponsor, the provider attestation will relieve the employer from submitting a separate Gag Clause attestation. Nonetheless, if the employer presents each an insured medical plan and a self-insured medical plan, the plan sponsor must full a Gag Clause Attestation for his or her self-insured medical plan agreements. This can be crucial if the self-funded plan’s TPA, PBM or different vendor won’t file an attestation on the plan’s behalf. Be aware that the HIOS web site permits reporting entities to pick the applications and contracts they’re testifying for, which permits flexibility to the plan sponsor to attest just for the plans the place different distributors aren’t offering attestations.

Subsequent Steps

Employers and plan sponsors ought to evaluation their service agreements to make sure they don’t comprise gag clauses. They need to additionally verify if their medical insurance coverage provider, TPA, PBM or different service supplier will full a gag clause attestation on their self-insured plan’s behalf. Employers and sponsors required to finish a Gag Clause Attestation for 2025 ought to be ready to file their attestation no later than December 31, 2025.

New and recurrent reporting entities can depend on the GCPA Directions and the CMS Consumer Guide to finish their gag clause attestations or contact the CMS Market Service Desk for help by way of electronic mail at CMS_FEPS@CMS.HHS.gov or by way of cellphone by calling (855)267-1515. For the primary time since 2022, reporting entities will obtain a affirmation electronic mail from CMS, acknowledging that the GCPA was efficiently submitted. We advocate that employers and plan sponsors retain a duplicate of the affirmation electronic mail and a duplicate of the GCPA submission itself (a duplicate might be printed or downloaded from the HIOS web site) with different profit plan data.

When you have any questions, please contact your HUB Advisor. View extra compliance articles in our Compliance Listing.