What the Attestation Is
The Gag Clause Prohibition Compliance Attestation is an annual submission confirming that a group health plan’s contracts contain no terms restricting its access to cost and quality information. It comes from the Consolidated Appropriations Act, 2021, and it is due December 31 each year.
It is short, it is submitted through a federal portal rather than with any tax filing, and it is unusual in one respect: it is not a report about your plan’s operations. It is a statement about what your contracts say.
What Counts as a Gag Clause
The prohibition targets contract terms that stop a plan from seeing or sharing information it ought to be able to use. Broadly, a contract cannot restrict the plan from:
- Accessing provider-specific cost or quality-of-care information.
- Disclosing that information to participants, beneficiaries, enrollees, or plan fiduciaries.
- Sharing de-identified claims and encounter data with a business associate acting on the plan’s behalf, consistent with privacy rules.
That third point is the one with real consequences for employers. A contract that prevents your plan from handing de-identified claims data to an adviser or analytics vendor is precisely what the provision was written to reach — and it is also what makes independent review of your own spending possible. The attestation is not merely paperwork; it is the mechanism behind an employer’s ability to examine its own claims.
Who Submits It
| Plan Type | Who Typically Submits | Where the Obligation Sits |
|---|---|---|
| Fully insured | The carrier, on the plan’s behalf | On the plan — but if the issuer submits, both are treated as having satisfied it |
| Self-funded or level-funded | The third-party administrator, by arrangement | On the plan, regardless of who files |
For fully insured plans the relief is real: where the issuer attests, the plan is covered too. But it is conditional on the carrier having actually filed, and an employer who assumes it happened has no evidence if it did not. The sensible step is a short written confirmation from the carrier each year.
For self-funded and level-funded plans there is no equivalent relief. The administrator may submit, and usually will, but the obligation stays with the plan. Again, a written confirmation is what turns an assumption into a record.
No Small-Plan Exemption
This surprises employers who are used to compliance thresholds. There is no participant-count exemption. The Form 5500 lets plans with fewer than 100 participants off the filing; the attestation does not. A plan covering ten employees owes it on the same terms as one covering a thousand.
It is worth remembering that the thresholds across benefits compliance do not line up. COBRA starts at 20 employees, the ACA employer mandate at 50, the Form 5500 at 100 participants, and the Summary Plan Description from the very first covered employee. The attestation, like the SPD, has no floor at all.
What to Do Before December 31
- Ask your carrier or administrator, in writing, whether they will submit on your behalf and when.
- Keep the reply. It is the only evidence you will have that the filing was made.
- If you are self-funded or level-funded, confirm it rather than assume it — the obligation does not transfer with the task.
- Check your administrative services agreement for any restriction on sharing de-identified claims data with an adviser. If one exists, that is a contract to renegotiate, not just an attestation to complete.
- Diarize it annually. It recurs every December 31 and there is no extension.
If you would like this tracked alongside your other annual filings, our compliance support covers it. We are not your plan administrator — we make sure the filings that belong to you actually get made, and that your contracts let you see your own data.
Questions We Get
What is the gag clause attestation?
The Gag Clause Prohibition Compliance Attestation is an annual submission to the federal government confirming that a group health plan’s contracts contain no terms restricting its access to cost and quality information. It comes from the Consolidated Appropriations Act, 2021 and is due December 31 each year.
What is a gag clause?
A contract term that stops a plan from seeing or sharing information it should be able to use. In practice that means a provision restricting the plan from accessing provider-specific cost or quality data, from disclosing that information to participants or plan fiduciaries, or from sharing de-identified claims data with a business associate acting on the plan’s behalf.
When is the gag clause attestation due?
December 31 each year, covering the period since the last attestation. It is submitted through the CMS portal rather than filed with a tax return, and there is no extension.
Do fully insured plans have to submit the gag clause attestation?
The obligation sits on the plan. However, where the issuer submits on a fully insured plan’s behalf, both the plan and the issuer are treated as having satisfied it. That is genuine relief, but it depends on the carrier actually having filed — which is worth confirming in writing each year rather than assuming.
Do self-funded plans submit it?
Yes. A self-funded plan may arrange for its third-party administrator to submit on its behalf, and most do, but the legal obligation remains with the plan. A written confirmation from the administrator that the filing was made is the thing to keep.
Is there a small plan exemption?
No. Unlike the Form 5500, which exempts plans with fewer than 100 participants, the attestation has no participant-count threshold. A plan covering a handful of employees owes it on the same terms as a large one.
What happens if a plan does not attest?
Failure to attest is a compliance failure that can draw enforcement from the Departments of Labor, Health and Human Services, or the Treasury. More practically, the attestation is a statement about the contracts a plan has signed — so a plan that cannot attest truthfully has a contract problem to fix, not just a filing to make.
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