The Gag Clause: The Contract Term That Kept You From Your Own Data

Written By Marsha Marrullier

For most of my career, a self-funded employer could pay every claim and still be told it could not see the claims file. The reason was a gag clause: a line in the TPA, PBM, or network contract that kept the plan from getting or sharing its own cost, quality, and claims data.

Federal law ended that in December 2020. Section 201 of the Consolidated Appropriations Act, 2021 prohibits group health plans from agreeing to any term that restricts access to provider-specific cost and quality information, de-identified claims data, or the ability to share that data with a consultant or auditor.

There is a catch. The plan has to say so, every year. Each self-funded plan files a Gag Clause Prohibition Compliance Attestation with CMS by December 31. Your TPA or PBM can file for you, but only if it is in writing, and the responsibility stays with you as plan sponsor either way. Since 2025, the plan also answers for the agreements its vendors hold with networks and providers.

A few questions worth asking before December:

  • Who is filing our 2026 attestation, and do we have that in writing?

  • Have we read our TPA, PBM, and network contracts for language that limits our data?

  • Has any vendor confirmed that its downstream agreements are clean?

  • Where is last year’s confirmation?

If you cannot answer all four in a minute, that is the place to start.

Marsha Marrullier, REBC
Marsha-Marrullier@Leavitt.com
(727) 315-5211 / Cell (727) 385-1067

Marsha Marrullier

Marsha C. Marrullier, REBC

Senior Employee Benefits Advisor | ARCW Leavitt Insurance Group

Marsha C. Marrullier is one of the most seasoned employee benefits strategists in the country, bringing more than 30 years of consulting, underwriting, and plan design expertise to employers across Florida, Kentucky, and the Southeast United States.

 

In 1989, Marsha founded Corporate Benefits Network, Inc., a consultancy built on the principle that employers deserve more than annual renewals and reactive cost management. Over three decades, she grew the firm into a nationally respected practice serving businesses from 50 to 5,000 employees — helping CEOs, CFOs, Controllers, and HR Directors fundamentally restructure how they purchase, manage, and leverage their employee benefits programs. Corporate Benefits Network was ultimately acquired by ARCW Leavitt Insurance Group, the 17th largest independent P&C Insurance agency in the United States, where Marsha continues her practice today.

 

Marsha's technical foundation is rare in the consulting industry. She combines deep underwriting knowledge with financial modeling expertise, allowing her to evaluate self-funded and level-funded plan structures, captive arrangements, and stop-loss programs with the precision of an actuary and the perspective of a business advisor. Her PBM analysis and pharmacy cost containment strategies have produced significant savings for clients navigating one of healthcare's most complex and opaque markets.

 

Clients retain Marsha not to sell them a product, but to solve a problem: how to reduce healthcare spend without reducing the quality of care or the value of benefits to employees. Her approach is rigorous, data-driven, and unapologetically aligned with the financial interests of the employer and the health outcomes of their workforce.

 

A Registered Employee Benefits Consultant (REBC), Marsha is recognized throughout the industry for her integrity, her technical depth, and her ability to translate complex benefits strategy into clear, actionable financial decisions for executive leadership teams.

https://MarshaMarrullier.com
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