With the first of the CAA's annual gag clause attestations due at the end of this year, we have been inundated with questions about the process, who is required to complete it, and what assistance TPAs and other industry players are providing to plans. While these obligations fall on health plans themselves, plan sponsors will almost universally rely on vendors like TPAs and networks for assistance. As such, the industry is in a state of flux as it waits for new "norms" to develop regarding best practices and what will be reasonable for a plan sponsor to expect as far as assistance. We have already seen the full gamut, from TPAs providing no assistance whatsoever, to submitting the plan's attestation on its behalf, to actually reviewing contracts for their customers and submitting the attestation.

What we haven't seen, however, is questions about the actual contract review process – what is a gag clause, and what are the situations in which one would or wouldn't impact the plan's attestation? To this point, it makes sense to look at the actual text of the CAA. The gag clause contract prohibition provides as follows:

…A group health plan … may not enter 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 directly or indirectly restrict a group health plan or health insurance issuer offering such coverage from —