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Gag Clause Attestation

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The CAA requires, among other things, that a group health plan attest, by December 31, 2023, that it "will not enter into an agreement, and has not, subsequent to December 27, 2020, entered into an agreement" with a service provider that contains a gag clause.

A covered health plan entered into a master services agreement with a carrier (say, Blue Cross) in 2010 that contains an offending gag clause.  The master agreement has not been amended since originally executed, except that the financial terms of the agreement change each year (including in 2021, 2022, and 2023), subject to the parties' agreement on such revised terms.  The parties have agreed each year to the subsequently changed financial terms

Two questions:

1-Do the revised financial terms mean that the services agreement has been amended such that the plan has entered into an agreement after December 27, 2020, so that the plan cannot make the attestation.  Or can the plan make the attestation because the original agreement predates the effective date of the gag rule requirement?

2-If the answer to the first question is that the plan cannot make the attestation due to the changes in financial terms, can an amendment retroactively removing the offending clause even fix the situation?  (Because the plan has, in effect, "entered in an agreement" that contains a gag clause and amending the agreement, even retroactively, doesn't really change that.)

Any thoughts are appreciated.  Thanks!

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I would think any change to the terms of the agreement would constitute entering into a new agreement for these purposes.  So I would work with the TPA to remove those gag clause provisions asap.  They'll probably be more than willing to given the CAA provisions at play here.  My guess is they would even be willing to date the change back to 12/27/20 and certify that they have not enforced such terms since that date.  It's not perfect, but it still should be good enough at this point--not really sure what else could be done.

Here's the actual attestation language:


The following will then display:
Group health plans, including non-federal governmental plans, and health insurance issuers offering group health insurance coverage.
I attest that, in accordance with section 9824(a)(1) of the Internal Revenue Code, section 724(a)(1) of the Employee Retirement Income Security Act, and section 2799A-9(a)(1) of the Public Health Service Act, the group health plan(s) or health insurance issuer(s) offering group health insurance coverage on whose behalf I am signing will not enter into an agreement, and has not, subsequent to December 27, 2020, entered into an agreement with a health care provider, network or association of providers, third-party administrator, or other service provider offering access to a network of providers that would be directly or indirectly restrict the group health plan(s) or health plan(s) or health insurance issuer(s) from—...

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