Understanding the Gag Clause Attestation Requirement: What Employers Need to Know

An annual federal filing that no tax software reminds you about — and that self-funded employers cannot delegate away.

Under the Consolidated Appropriations Act, 2021, all group health plans must comply with the federal Gag Clause Prohibition — a rule that bans contracts preventing employers or plans from accessing or sharing important provider cost, quality, and de-identified claims information.

Because of this rule, employers must submit an annual attestation confirming they have no prohibited gag clauses in any agreements with their health plan service partners.

Who must submit

Fully insured employers

Your insurance carrier typically submits the attestation for you. If the carrier files, you are considered compliant and no separate employer action is needed. Get that confirmation in writing and keep it with your plan records — “typically” is doing real work in that sentence.

Self-funded employers

You may contract with your TPA to submit the attestation, but the legal responsibility remains with you. If your TPA declines to file, you must submit the attestation directly.

You must still attest even if a violation exists

If you discover a prohibited gag clause in a contract and your vendor will not remove it, you are still required to:

• Submit the attestation
• Disclose the issue in the submission portal
• Document your efforts to correct it

Federal agencies consider good-faith reporting when reviewing potential enforcement. Silence is the worse option.

How BeneSkill helps

• Reviewing carrier and TPA contracts for prohibited clauses
• Determining whether your carrier or TPA will submit on your behalf
• Supporting self-funded employers with direct attestation filing
• Ensuring compliance well before the annual deadline

Our goal is to reduce administrative burden and keep your organization fully compliant with federal transparency rules.