New Gag Clause Compliance Attestation Due by December 31, 2023

October 25, 2023

Since December of 2020, the Consolidated Appropriations Act, 2021 (CAA) has prohibited group health plans (GHPs) and issuers from entering into contracts with health care providers, third-party administrators (TPAs) or other service providers that would restrict the GHP or issuer from providing, accessing or sharing certain information about provider price and quality and deidentified claims. GHPs and issuers must now annually submit a Gag Clause Prohibition Compliance Attestation (GCPCA) of compliance with these requirements through a CMS webpage and the first attestation for the 2021 to 2023 years is due by December 31, 2023. Subsequent attestations are due by December 31 of each year thereafter. See our recent Update for more background on this requirement.

Applicable Plans
This GCPCA requirement applies to all insured and self-insured GHPs, including ERISA plans, non-federal governmental plans, and church plans subject to the Internal Revenue Code. Attestation is not required for excepted benefits (like stand-alone dental and vision), and the agencies will not enforce the requirement against health reimbursement arrangements (HRAs) or other account-based plans.

Plans Must Attest to Compliance
A GHP must confirm that it has not entered into an agreement with a health care provider, network, or association of providers, TPA, or other service provider in violation of the gag clause prohibitions. Conner Strong has conducted a review to confirm that our applicable issuers, TPAs, PBMs, and other service providers to our client GHPs are able to provide a Certificate of Compliance with the gag clause prohibitions. These Certificates should be kept in the GHP files. We have confirmed that the benefits and/or administrative services they and their affiliated insurance companies provide to our client’s GHPs are consistent with the requirements of Section 201 of the Consolidated Appropriations Act (CAA): Increasing Transparency by Removing Gag Clauses on Price and Quality Information.

Options for Submitting the Attestation
Agency guidance indicates that carriers/TPAs may attest on behalf of GHPs, but carriers and TPAs are taking varied approaches as to their willingness to attest on behalf of GHPs. If the carrier (on behalf of a fully-insured plan) or TPA (on behalf of a self-funded plan) indicates a willingness to attest on behalf of a GHP, the employer can generally rely on that attestation, however, the legal requirement technically remains with the GHP.  If the carrier, TPA or any other service providers will not attest to compliance on the GHP’s behalf, the employer will need to self-attest on behalf of its GHPs.

Note that for an insurer/TPA to submit this level of detail on behalf of every GHP client would be more involved than the more straightforward option of self-reporting for the GHP sponsor. Also, GHP sponsors may have contracts with other entities (e.g., other service providers/administrators) that they would need to consider for their attestation, which is information that a third party (like an insurer) wouldn’t have and would be unable/unwilling to collect, so a separate attestation would be required for the other contracts. So while the guidance provides the option for GHPs to have a third-party attest on its behalf, our thorough review of the option and its impacts has led us to conclude that the most cost-effective and efficient approach for many GHP sponsors may be for them to self-attest on behalf of their GHP to ensure accurate compliance, rather than having any third party assume responsibility for attesting on behalf of the GHP. We will be assisting our clients who choose to self-attest with their submissions. We will also assist any client who chooses to have a third party handle the attestation.

Attestation Process
We will direct the attestation process on behalf of our clients who choose to self-attest. The self-attest process is fairly simple and requires only that some general plan identifying information and contact information be provided through the GCPCA web page. Once the GHP identifies the attester, that individual will be sent a unique access code and will follow a simple signature/attestation process to indicate compliance.  A submission receipt is provided and should be downloaded and kept in the GHP files.

Next Steps – Join Our Webinar!
Your account team will contact you to discuss the Conner Strong & Buckelew process and how we will assist our clients with the new gag clause requirements.

Conner Strong & Buckelew regularly hosts educational webinars for our clients on new requirements affecting their GHPs. Join us on November 7 from 2:00pm – 3:00pm for our next webinar focused on the Conner Strong & Buckelew process to assist with the gag clause attestation. Click here to register.

Please contact your Conner Strong & Buckelew account representative toll-free at 1-877-861-3220 with any questions. For a complete list of Legislative Updates issued by Conner Strong & Buckelew, visit our online Resource Center.


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