Recently, the Departments of Labor, Health and Human Services, and Treasury (collectively “the Departments”) released guidance on the annual attestation requirement associated with the prohibition of gag clauses, which was enacted as part of the Consolidated Appropriations Act, 2021 (CAA). While the prohibition of gag clauses has been in effect since December 27, 2020, the annual attestation requirement will be due for the first time on December 31, 2023, and will be due annually on December 31st thereafter, explained further below.
- The first Gag Clause Prohibition Compliance Attestation (GCPCA) submission is due December 31, 2023, and will cover the period of December 27, 2020, through the date of the attestation.
- Subsequent GCPCA submissions are due by December 31st of each year thereafter.
- Group health plans can satisfy their reporting obligations by having third parties, such as carriers or third-party administrators (TPAs), submit the attestation on their behalf.
As part of overall transparency efforts, the CAA prohibition of gag clauses prohibits plans and issuers (i.e., insurance carriers) from entering into an agreement with a provider or TPA that would restrict the plan from providing cost or care information to plan participants, accessing de-identified claims data, and sharing the information per privacy regulations with a business associate. As part of this requirement, plans and insurance carriers must annually attest to the Departments that they are in compliance.
Plans Required to Attest and Exceptions
All group health plans (including fully insured, level funded, self-insured, and grandfathered plans) are required to attest; however, excepted benefits (e.g., standalone dental or vision plans and certain employee assistance programs) and short-term, limited-duration insurance are exempt from this requirement. In addition, the requirement to submit a GCPCA will not be enforced for plans that consist solely of health reimbursement arrangements (HRAs), or other account-based group health plans (such as health care flexible spending accounts (FSAs).
While the prohibition of gag clauses has been effective since December 27, 2020, enforcement of the annual attestation requirement had been delayed pending further guidance. On February 23, 2023, the Department released guidance and instructions related to the attestation requirement via FAQs Part 57 and CMS resources.
FAQs Part 57 explain that the first attestation should cover the period of December 27, 2020 (or the effective date of the applicable group health plan, if later) through the date of submission, and is due no later than December 31, 2023. All subsequent GCPCA submissions are due by December 31st of each year thereafter, covering the period since the last preceding attestation. The GCPCA will be submitted electronically through this CMS website, and the instructions and user manual are available here. For more information, see Q5 through Q13 of the FAQs.
Employers are responsible for complying with the prohibition of gag clauses and attesting compliance with the requirement. That said, employers should confirm that any agreements they have in place with a provider or TPA comply with the prohibition on gag clauses and that the third party will attest such compliance to the Departments annually. Importantly, if agreements currently in effect include any prohibited gag clauses, agreements should be amended to remove such language.
According to the guidance, plans can satisfy their attestation obligations by having third parties, such as insurance carriers or TPAs, submit the attestation on their behalf. As such, employers should do the following, based on their funding type:
- Fully insured: Confirm with their carriers that they will be complying with this requirement, as it is anticipated that most carriers will attest on behalf of fully insured plans. The group health plan and the insurance carrier are each required to annually submit a GCPCA for fully insured plans. However, if the carrier submits the GCPCA on behalf of the plan, the plan will be considered compliant with this requirement.
- Self-insured: Confirm that their TPA will assist with this requirement and if so, the employer will want to consider entering into a written agreement with the TPA accordingly. Self-insured employers should be aware that they are ultimately liable for any failure to attest (even if the failure is by the TPA). TPAs that offer fully insured plans and act as a TPA for self-insured group health plans are permitted to submit a single GCPCA on behalf of itself, its fully insured group plans, and its self-insured administrative services only (ASO) clients. As such, it is important to communicate with your TPA to avoid duplication.
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