Deadline for Submitting Gag Clause Attestation Is Dec. 31, 2025
Federal law prohibits group health plans and health insurance issuers from entering into contracts with health care 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).
Health plans and issuers must annually submit an attestation of compliance with the gag clause prohibition to the Departments of Labor, Health and Human Services and the Treasury (Departments). These attestations are due on Dec. 31 of each year. The next attestation is due on Dec. 31, 2025. The Departments may take enforcement action against plans and issuers that do not submit the required attestations timely.
Prohibition on Gag Clauses
A gag clause is a contractual term that directly or indirectly restricts specific data and information that a health plan or issuer can make available to another party. Federal law generally prohibits group health plans and issuers offering group health insurance from entering into agreements with health care providers, TPAs or other service providers that include certain gag clause language. Specifically, these contracts cannot restrict a plan or issuer from:
- Providing provider-specific cost, quality-of-care information or data to referring providers, the plan sponsor, participants, beneficiaries or enrollees (or individuals eligible to become participants, beneficiaries or enrollees of the plan or coverage);
- Electronically accessing de-identified claims and encounter information or data for each participant, beneficiary or enrollee upon request and consistent with privacy rules under the Health Insurance Portability and Accountability Act (HIPAA), the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA); and
- Sharing information or data described in (1) and (2) above or directing such information to be shared with a business associate, consistent with applicable privacy rules.
For example, if a contract between a TPA and a health plan provides that the plan sponsor’s access to provider-specific cost and quality-of-care information is only at the discretion of the TPA, that contractual provision would be considered a prohibited gag clause.
A health plan’s TPA or other service provider may have separate agreements with other entities to provide or administer the plan’s network. If such downstream agreements restrict the health plan from providing, accessing or sharing the relevant information or data, this would be a prohibited gag clause, even if the plan is not a party to the agreement. To comply with the gag clause prohibition, the Departments expect that, in their direct contracts with TPAs or other service providers, health plans will include provisions that prohibit the TPA or other service provider from entering into a downstream agreement that restricts the plan from accessing or sharing relevant information or data.
Plans and issuers must ensure their agreements with health care providers, networks or associations of providers, TPAs or other service providers offering access to a network of providers do not contain provisions that violate the prohibition of gag clauses.
Gag Clause Compliance Attestations
Health plans and issuers must annually submit an attestation of their compliance with the gag clause prohibition to the Departments. Attestations are due on Dec. 31 of each following year, covering the period since the last attestation. The deadline for submitting the next attestation is Dec. 31, 2025.
The attestation requirement applies to fully insured and self-insured group health plans, including ERISA plans, nonfederal governmental plans and church plans. Additionally, this requirement applies regardless of whether a plan is considered “grandfathered” under the Affordable Care Act. However, plans that provide only excepted benefits and account-based plans, such as health reimbursement arrangements, are not required to submit an attestation.
According to the Departments’ FAQs, health plans and issuers that do not submit their attestations by the deadline may be subject to enforcement action. Gag clause attestations must be submitted electronically through a federal website. The Departments have provided instructions for submitting the attestation, a system user manual and FAQs, all of which are available on the CMS’ website.
Noncompliant Agreements
Health plans are required to submit the annual gag clause attestation even if they are aware that they have entered into an agreement that violates the gag clause prohibition (including instances in which a TPA or service provider has entered into a downstream agreement that restricts the use of relevant information or data). According to the Departments’ FAQs, health plans must identify the noncompliant provision as part of their attestation, using the text box labeled “Additional Information” in Step 3 of the online system for this purpose. Such additional information should include:
- Any prohibited gag clauses that a service provider has refused to remove;
- The name of the TPA or service provider with which the plan has the agreement containing the prohibited gag clause;
- Conduct by the service provider that shows the service provider interprets the agreement to contain a prohibited gag clause;
- Information on the plan’s requests that the prohibited gag clause be removed from such agreement; and
- Any other steps the plan has taken to come into compliance with the provision.
Even if a health plan submits this additional information, the provision in question could still be considered a prohibited gag clause and may be subject to enforcement action by the Departments. However, the Departments have indicated that they will take into account good-faith efforts to self-report a prohibited gag clause in any such enforcement action.
Relying on Issuers/TPAs to Submit Attestation
With respect to fully insured group health plans, the health plan and the issuer are each required to submit a gag clause compliance attestation annually. However, when the issuer of a fully insured group health plan submits a gag clause compliance attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.
Employers with self-insured health plans can satisfy the gag clause compliance attestation requirement by entering into a written agreement under which the plan’s service provider, such as a TPA, will provide the attestation on the plan’s behalf. However, even if this type of agreement is in place, the legal requirement to provide a timely attestation remains with the health plan. Some service providers have also indicated they are unwilling to submit attestations for their self-insured groups. In this case, employers may need to submit the attestations for their health plans.
Employer Takeaway
Employers should review their contracts with health plan service providers to confirm they do not contain prohibited gag clauses. Employers should also confirm that these contracts prohibit their service providers from entering into agreements with other entities that provide or administer the plan’s network (“downstream agreements”) that restrict the plan from accessing or sharing relevant information or data. According to the Departments, this restriction would be a prohibited gag clause, even though the health plan is not a party to the agreement.
Also, employers should review what actions they may need to take to comply with the gag clause attestation requirement. Employers with fully insured health plans do not need to provide an attestation if their plan’s issuer provides the attestation. Self-insured employers can enter into written agreements with their TPAs to provide the attestation, but the legal responsibility remains with the health plan. Self-insured employers may need to submit their own attestations if their TPA is unwilling to submit the attestation on their behalf.
For additional assistance, please see our 2025 Gag Clause Attestation Guide and/or check out our Gag Clause Attestation Webinar on Tuesday, December 4 at 10:00 AM CST. If you missed it, you can view a recording of the webinar here.
Government Reopening and the End of Enhanced ACA Subsidies: Potential Impact on Employers
The Affordable Care Act (ACA) created a federally financed subsidy called the premium tax credit (PTC) to help eligible individuals and families with low or moderate incomes afford health insurance purchased through an Exchange. During the COVID-19 pandemic, Congress temporarily enhanced the PTC by eliminating the income cap for eligibility and increasing the amount of the subsidy for all income brackets. According to a Congressional Research Service report, the number of Exchange enrollees receiving subsidized coverage rose from 9.2 million in 2020 (before the PTC enhancements) to 19.3 million in 2024.
The enhanced PTC is scheduled to expire at the end of 2025. When the enhanced subsidies expire, individuals and families with incomes above 400% of the federal poverty level (FPL) will no longer be eligible for PTCs. Also, for individuals still eligible for PTCs, the amount will be smaller compared to the enhanced credits. This is expected to lead to a reduction in federal spending, as well as an increase in premiums and a rise in the number of individuals without health coverage.
Employer Takeaway
Employers may feel the impact of the expiration of the enhanced PTC in various ways, depending on their workforce demographics and benefit offerings. As premiums increase in the individual insurance market, more employees may seek to enroll in employer-sponsored coverage where it is available. Employees who are not eligible for affordable coverage through their current employers may consider switching jobs to gain access to such coverage. Also, if fewer employees qualify for the PTC, an applicable large employer’s potential liability for a pay-or-play penalty under the ACA may be reduced. However, employers that sponsor individual coverage health reimbursement arrangements (ICHRAs) that help employees pay their individual health insurance premiums may need to increase their contributions to keep coverage affordable for their employees.
IRS Announces 2026 Retirement Plan Limits
The IRS has released Notice 2025-67, containing cost-of-living adjustments for 2026 that affect amounts employees can contribute to 401(k) plans and individual retirement accounts (IRAs).
Key Changes for 2026
The employee contribution limit for 401(k) plans in 2026 has increased to $24,500, up from $23,500 for 2025, and the employee contribution limit for IRAs in 2026 increased to $7,500, up from $7,000 for 2025.
Other key limits include the following:
- The IRA catch‑up contribution limit for individuals aged 50 and over increased to $1,100, up from $1,000 for 2025 (this limit now includes an annual cost‑of‑living adjustment because of legislation enacted at the end of 2022, referred to as “SECURE 2.0”).
- The employee contribution limit for SIMPLE IRAs and SIMPLE 401(k) plans is increased to $17,000, up from $16,500. Pursuant to a change made in SECURE 2.0, individuals can contribute a higher amount to certain applicable SIMPLE retirement accounts—for 2026, this higher amount is increased to $18,100, up from $17,600.
- The limit used to define a “highly compensated employee” remains unchanged at $160,000.
- The limit used to define a “key employee” is increased to $235,000, up from $230,000.
- The annual limit for defined contribution plans (for example, 401(k) plans, profit-sharing plans and money purchase plans) is increased to $72,000, up from $70,000.
- The annual compensation limit (applicable to many retirement plans) is increased to $360,000, up from $350,000.
- The catch-up contribution limit for employees aged 50 and over who participate in 401(k), 403(b), most 457 plans and the federal government’s Thrift Savings Plan is increased to $8,000, up from $7,500. Under a change made in SECURE 2.0, a higher catch-up contribution limit applies to participants ages 60-63; these participants can contribute up to $11,250 for 2026 (instead of $8,000), which is unchanged from 2025.
The income ranges for determining eligibility to make deductible contributions to traditional IRAs, contribute to Roth IRAs and claim the Saver’s Credit (also known as the Retirement Savings Contributions Credit) also increased for 2026.
Employer Takeaway
Employers should notify their participants of these new limits and make any adjustments in their payroll/benefits administration systems as necessary.
Downloadable 2026 HR Compliance Calendar
An HR compliance calendar is a valuable tool to help your business stay on track with key employment-related deadlines throughout the year. Use this calendar to keep track of important compliance tasks for 2026.
As a reminder, Higginbotham offers clients a free, customized and automated employee-benefits Compliance Dashboard and Calendar. Please contact your Higginbotham representative to find out more information and get set up today!
