Gag Clause Attestations: Due by December 31

Employers sponsoring group health plans are prohibited from entering into agreements containing contractual ‘gag clauses’ which operate to restrict access to provider cost, quality, or de-identified claims data. Most group health plans must also submit an annual Gag Clause Prohibition Compliance Attestation (GCPCA) to CMS by December 31 each year.

Note: Although the annual attestation itself is relatively straightforward, employers should not overlook the underlying contractual review. Plans frequently rely on multiple vendors, including carriers, TPAs, PBMs, telehealth providers, and behavioral health vendors. Ensuring that these arrangements comply with the gag clause prohibition and understanding who will submit the annual attestation will help avoid compliance gaps.

Review the IMA guide for more detailed information including helpful links and a chart outlining which plans must comply and attest annually by December 31.

Which Plans Must Comply?

The gag clause prohibition and attestation requirements apply to most employer-sponsored health plans, but not excepted benefits (e.g., stand-alone dental or vision, health FSA), retiree-only plans, or account-based plans (e.g., HRAs).

The employer should consider all contracts with service providers in connection with its health plan(s). Beyond the carriers and TPAs, there may be additional service providers that need to be considered. For example, provider contracts with and coordinated by PBMs, behavioral health vendors (e.g., network agreements for mental health providers), telehealth arrangements, direct primary care arrangements, and other medical providers (e.g., access to preferred pricing for certain procedures if using particular providers) are also prohibited from having gag clauses and should be considered by the employer when attesting to compliance.

For a chart of which plans are subject to the gag clause prohibition, review our previously published guide here.

Who Must Complete the Attestation?

Fully-Insured Group Health Plans

Generally, employers will receive an email from the carrier confirming they will attest on behalf of the plans they offer. Many carriers will offer to do so, in which case employers may rely on the carrier to submit the required attestation, but it is recommended that the employer seek assurance from the carrier that the attestation is being submitted on their behalf.

The carrier may have concerns about attesting on the employer’s behalf without knowing whether there are additional contracts with other service providers not coordinated by the carrier. If the carrier is not willing to attest on the employer’s behalf, or if the employer does have separate contracts in place with other service providers (e.g., PBM or telehealth provider), then the employer will need to attest on behalf of the plan.

Self-Funded Group Health Plans

Generally, employers sponsoring a self-funded group health plan must take action to attest online. This is because the TPA and other service providers for a group health plan are not directly subject to the gag clause prohibition or attestation requirements, but such service providers are often directly involved in contracting on behalf of the group health plan and administering the plan accordingly.

The rules specifically permit the service providers to attest to compliance on behalf of the plan if the employer enters into a written agreement under which the plan’s service provider(s) will submit the required attestation. This may be offered in the form of a line item to be checked in the TPA’s administrative service agreement (ASA). In any event, be aware that the legal requirement to provide a timely attestation remains with the employer.

Employer Responsibilities

• Identify all service providers that contract with plan providers (e.g., carrier, TPA, PBM, behavioral health, telehealth, etc.).
• Determine which vendors agree to submit the attestation on behalf of the underlying plan and, if possible, obtain written verification of the vendor’s agreement to perform the attestation requirement.
• If a particular vendor does not agree to submit the attestation, obtain written confirmation of actual compliance with the gag clause prohibition from the vendor and save in your records.
• Complete and submit the CMS attestation annually by December 31 (to the extent required).
• Maintain documentation of the vendor confirmation process and archive all CMS submission and acknowledgement receipts.

Attestation Process

The attestation process itself is fairly straightforward, requiring only some plan identifying information, employer contact information, and a checked box and signature to indicate compliance. This is all done via a website portal. The attestation process can be broken down into 4 general steps:

1. Confirm compliance. Review any group health plan contracts to confirm there are no prohibited gag clauses. Alternatively, reach out to all carriers, TPAs and any other service providers and ask for written confirmation that contracts they handle on behalf of the group health plan do not contain any prohibited gag clauses. Such documents should be kept in the employer’s files.
2. Obtain website access. Go to CMS’ portal link above, enter in an email address, and get a unique code to access the attestation form. The website for submitting the attestation can be found here.
3. Complete the attestation form. Fill out the required information in 5 short sections of the form and then sign off on compliance with the gag clause prohibition requirements.
4. Confirm submission. Upon completion and submission of the form, download the submission receipt and file it away in case of future audit or questions.

Bottom Line

Most employer-sponsored group health plans are subject to the gag clause prohibition and annual attestation requirement. While many carriers and service providers assist with compliance, plan sponsors should confirm their vendors’ responsibilities, maintain supporting documentation, and ensure the attestation is completed by the annual deadline.  For more information, CMS created a webpage with information about how to comply with the gag clause prohibition as well as how to attest to compliance, which you can find here.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information. This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.

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