Prohibition on gag clauses and the attestation requirement

On February 23, 2023, the Departments of Labor, Health and Human Services, and Treasury prepared Frequently Asked Questions related to the prohibition on gag clauses, including guidance and methods for submitting annual attestations of compliance with the anti-gag clause requirements. The first “Gag Clause Prohibition Compliance Attestation” is due no later than December 31, 2023, which covers the period beginning December 27, 2020 (or the effective date of the group health plan or health insurance coverage, if later), through the attestation date.

This Alert summarizes the prohibition on gag clauses and the annual Gag Clause Prohibition Compliance Attestation, including how to comply with the attestation requirements, who can complete the attestation, and next steps for plan sponsors to ensure compliance with these requirements.