Final Reminder – DOL Gag Clause Attestation Deadline Coming Up
As of 2020, the Consolidated Appropriations Act (CAA) prohibits health plans and issuers from entering into contracts with healthcare providers, third-party administrators (TPAs) or other service providers that contain gag clauses (i.e., clauses restricting the plan or issuer from providing, accessing or sharing certain information about provider price and quality and de-identified claims).
Plans and issuers must annually attest to compliance with the CAA’s gag clause prohibition to the Departments of Labor, Health and Human Services, and the Treasury. The first attestation was due by Dec. 31, 2023. Subsequent attestations are due by Dec. 31 each year.
The U.S. Department of Labor has resources to assist health plans and health insurance issuers in submitting their annual attestation of compliance. These resources can be used to submit the next gag clause attestation, which is due by Dec. 31, 2024.
The Centers for Medicare & Medicaid Services previously made instructions and a user manual for submitting prior attestations available.
Employer Takeaway
Employers should review their contracts with issuers, TPAs or other health plan service providers to confirm they do not contain prohibited gag clauses. Also, employers should review what action they may need to take to comply with the gag clause attestation requirement:
- An employer does not need to provide an attestation for a fully insured health plan if the issuer of the plan provides the attestation (which most do).
- Self-insured employers can enter into written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan. While some TPAs are willing to submit attestations on behalf of their self-insured groups, others have indicated they are unwilling to do so.
Employers who need to submit attestations should review the latest instructions and user manual for submitting attestations.
Congress Sends Bills to President Biden to Ease Employer ACA Reporting
Last week, Congress sent two bills to the outgoing President that are intended to make ACA reporting slightly easier for employers. The two bipartisan bills, which we advocated heavily for, and if signed by the President, will help alleviate some of the ACA reporting requirements. When signed, they should be effective for all returns submitted after Dec. 31, 2024.
- The Paperwork Burden Reduction Act (HB 3797) expands existing rules that keep an employer from having to furnish/mail paper copies of Forms 1095-B and 1095-C to all employees (though still sent to the IRS electronically). Instead, these forms only need to be furnished if requested by an individual, and the employer must also give employees a “clear and conspicuous notice” that they may receive paper copies on request.
- The Employer Reporting Improvement Act (HR 3801) allows substituting any covered individual’s birthdate for that person’s SSN/TIN if the employer has been unable to collect the TIN. Another provision would give employers more time — 90 days — to respond to proposed ESRP violations. The bill would also set a six-year statute of limitations for ESRP assessments.
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Employer Takeaway
Outside of the changes outlined above in these two specific bills, all other ACA reporting requirements will remain the same. It’s not everything we asked for (removal of all reporting altogether, or a preemptive one-page submission sent to the IRS annually that provides proof of an affordable offer of minimum essential coverage to all employees), but it’s a start.
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Is Die Hard a Holiday Movie?
The debate rages on. In the interim, our friends at the law firm of Fisher Phillips had a fun way of making sure your office holidays go off without a bang. |
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