Reminder: Gag Clause Prohibition Compliance Attestation due by December 31, 2023

The first Gag Clause Prohibition Compliance Attestation (GCPCA) required under the Consolidated Appropriations Act, 2021 (CAA) is due no later than December 31, 2023, covering December 27, 2020, through the date of the attestation. More information on submitting the GCPCA can be found on the Centers for Medicare & Medicaid Services website.

Background

The CAA prohibits group health plans and health insurance issuers offering group health insurance coverage from entering into agreements with healthcare providers, third-party administrators (TPAs) or other service providers that include a “gag clause.” In general, a gag clause restricts the plan or issuer from sharing specific cost or quality-of-care information with another party or restricts access to de-identified claims information for plan participants or beneficiaries.

Group health plan sponsors and issuers must annually attest that they are complying with the prohibition, starting with the first GCPCA due at the end of 2023.

Who must submit attestations?

Health insurance issuers as well as group health plans (fully insured and self-insured) — including ERISA plans, non-federal governmental plans and church plans subject to the Internal Revenue Code — must submit an annual GCPCA; however, the following are exempt from the attestation rule:

• Plans or issuers offering only excepted benefits^[1]
• Issuers offering only short-term, limited-duration insurance
• Medicare and Medicaid plans
• State Children’s Health Insurance Program plans
• The TRICARE program
• The Indian Health Service program
• Basic Health Program plans

Note: It would appear that this CAA transparency requirement, like other transparency requirements under that law, would not apply to retiree-only plans. With respect to health reimbursement arrangements (including individual coverage health reimbursement arrangements) and other account-based plans, the departments of Labor, Health and Human Services, and the Treasury are using discretion in enforcing this rule until these plans become officially exempt.

Going forward

• Employer group health plan sponsors should work with legal counsel to determine which benefits are subject to the GCPCA in addition to their major medical plan (e.g., employee assistance program, retiree medical and ancillary benefits) and review all agreements to ensure they do not contain gag clauses.
• The GCPCA may be submitted by a self-insured group health plan sponsor itself or its TPA. In order for a TPA to submit the attestation on behalf of the plan, a written agreement must be in place. Even with a written agreement, the plan remains liable for submitting the GCPCA.
• Self-insured group health plan sponsors should consider submitting the GCPCA themselves, particularly in situations where the employer has additional carve-out benefits, such as prescription drug or behavioral health, as the TPA likely will not have the required information for those benefits.
• For fully insured group health plan sponsors, the GCPCA requirement applies to both the fully insured group health plan and the health insurance issuer; therefore, when the issuer submits a GCPCA on behalf of the plan, the compliance attestation submission requirement is considered to be met. Plan sponsors should confirm that their carrier has completed the submission by the deadline.

Footnote

1. See “Does the CAA prohibition against gag clauses apply to ‘excepted benefits’?,” Insider, October 2023. Return to article undo