Reminder: Annual Gag Clause Prohibition Compliance Attestation due by December 31, 2024

Group health plan sponsors and health insurance issuers have until December 31, 2024, to submit the annual Gag Clause Prohibition Compliance Attestation (GCPCA) required under the Consolidated Appropriations Act, 2021 (CAA). This year’s GCPCA covers the period since the last preceding attestation. The GCPCA submission webform and additional resources can be accessed on the Centers for Medicare & Medicaid Services website, including FAQs, instructions, a user manual and an Excel spreadsheet for multiple reporting entities.

CAA prohibits group health plans and issuers from entering into agreements with healthcare providers, third-party administrators (TPAs) or other service providers that include language that restricts sharing specific costs or information on quality of care with another party or restricts accessing de-identified claims information for plan participants or beneficiaries (i.e., a “gag clause”). In addition to the gag clause prohibition, an annual compliance attestation must be submitted.

The gag clause prohibition and compliance attestation requirements apply to 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. The following, however, are exempt:

• Plans or issuers offering only excepted benefits (for more information, see the Insider article “Since you asked: Does the CAA prohibition against gag clauses apply to ‘excepted benefits’?”)
• 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: While existing guidance does not address retiree-only plans, it would appear that this CAA transparency requirement, like others in the CAA, 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 exercising discretion in enforcement until they can exempt them through official rulemaking.

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, ancillary benefits).
• Employer group health plan sponsors must submit the annual GCPCA by December 31, 2024, and work with legal counsel to ensure vendor agreements do not contain gag clauses.
• Self-insured group health plan sponsors may submit the GCPCA themselves or rely on their TPAs to do it on their behalf, upon written agreement. Keep in mind that the information included in the GCPCA relates to the employer plan sponsor and its group health plan, so a TPA might not have all of the information needed for the submission.
• Self-insured group health plan sponsors should consider submitting the GCPCA themselves rather than having a TPA do it, 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.
• When the issuer of a fully insured group health plan submits a GCPCA on behalf of the plan, the departments will consider both the plan and the issuer to have satisfied the compliance attestation submission requirement. Plan sponsors should confirm with their carrier that the GCPCA has been submitted by the deadline.