Under the Consolidated Appropriations Act, the Gag Clause Prohibition Compliance Attestation (GCPCA) is an attestation of compliance with Internal Revenue Code (Code) section 9824, Employee Retirement Income Security Act (ERISA) section 724, & Public Health Service (PHS) Act section 2799A-9. These provisions generally prohibit plans & issuers from entering into certain provider agreements that would prevent the disclosure of cost or quality of care information or data, and certain other information to active or eligible participants, beneficiaries, & enrollees of the plan or coverage, plan sponsors, or referring providers, or restrict the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations.
The GCPCA is required to be submitted annually by group health plans & health insurance issuers by 12/31. For employers whose healthcare plan is not submitting to the Center for Medicare & Medicaid Services (CMS) on their behalf, CMS has provided steps & instructions for compliance at https://www.cms.gov/marketplace/about/oversight/other-insurance-protections/gag–clause-prohibition-compliance-attestation. These employers can submit the GCPCA to CMS at https://hios.cms.gov/HIOS-GCPCA-UI.
What Is Required:
An annual attestation to the Departments of Labor, Health & Human Services, & the Treasury.
Who Must Submit:
Employers offering group health insurance, including fully insured & self-insured plans, as well as health insurance issuers.
When Is It Due:
The GCPCA is due annually by December 31 of each year.
How to Submit:
United HealthCare
- Fully Insured: UHC will make the attestation to the CMS portal as required, no action is needed by the employer
- Level-Funded, Self-Funded, & Surest Groups: Employers must file through the CMS portal by 12/31. UHC provides the attached confirmation of compliance that employers can use to support their attestation submission
BlueCross BlueShield
- Fully Insured & Balance-Funded: BCBS will make the attestation to the CMS portal as required, no action is needed by the employer
- Self-Funded/ASO: Employers must file through the CMS portal by 12/31. BCBS provides the attached confirmation of compliance that employers can use to support their attestation submission
Cigna Healthcare
- Fully Insured, Level-Funded, Graded-Funded, Preferred-Funded, & Standard-Funded Facets ASO: Cigna will make the attestation to the CMS portal as required, no action is needed by the employer
- Traditional ASO: Employers must file through the CMS portal by 12/31. Cigna provides the attached confirmation of compliance that employers can use to support their attestation submission
Aetna – Aetna will make the attestation to the CMS portal for all self-funded (including AFA), insured, and split-funded employers that had active coverage in 2024. Employers can also request a confirmation of compliance letter from the Aetna account manager.
What is Not Required:
Plans that only provide excepted benefits, such as standalone dental and vision plans, and account-based plans, such as such as a health FSA, HRA, and ICHRA. A plan that fails to comply with the gag clause attestation requirement may be subject to a penalty of $100 per day per affected individual.
Please contact your Client Relationship Manager at Parrott Benefit Group if you have any questions or need assistance.
RESOURCES:
- COMPLIANCE BULLETIN: Deadline for Submitting Gag Clause Attestation Is Dec. 31, 2024
- FAQs from the Departments regarding the CAA’s prohibition on gag clauses in provider agreements
- CMS website for submitting gag clause attestations
- The latest instructions and user manual for submitting attestations available HERE
The DOL has published instructions for submitting the next attestation, a system user manual for submitting attestations, and a template for 2024, as follows:
- 2024 Annual Submission Instructions
- 2024 User Manual
- 2024 Template
