Gag Clause Attestation Reminder for 2024

Background

The Consolidated Appropriations Act, 2021 (CAA) amended the Employee Retirement Income Security Act (ERISA), the Public Health Services Act (PHSA), and the Internal Revenue Code to prohibit group health plans and health insurance carriers (referred to as “issuers” in the rules) from entering into agreements with providers, TPAs, or other service providers that include language that would constitute a “gag clause” (i.e., contract provisions that restrict specific data and information that a plan can make available to another party).

Group health plans are required to submit a gag clause prohibition compliance attestation (GCPCA) each year by December 31 with the first round of GCPCA that was due by December 31, 2023.

Completing the Gag Clause Attestation

The gag clause prohibition and corresponding annual attestation requirements apply to virtually all employer-sponsored health plans, but they do not apply to:

• excepted benefits (e.g., stand-alone dental or vision, health FSA, EAP),
• retiree-only plans, or
• account-based plans (e.g., HRAs).

For reporting due by 12/31/24, CMS updated both the instructions and user manual with screen shots, to assist responsible entities with submitting gag clause attestations by December 31, 2024 via CMS’ website portal.

Also, for 2024, minor changes were made to the webform to allow selection of an attestation year and attestation period and to further clarify the type of plan that is being reported and the type of provider agreements included in the attestation. The webform now also includes a text box that allows for an explanation of the attestation if needed.

Action Required for Group Health Plan Sponsors (i.e. Employers)

• For the attestation period applicable to your group health plan, document and track the following for each carrier/TPA/PBM/other vendor wherein a contract with a provider or network exists:
  • Track whether the applicable carrier/TPA/PBM/other vendor will submit the attestation for your group health plan.
  • If not, document the vendor’s certification of compliance. Then, group health plan sponsors will need to log into the CMS portal by 12/31/24 to make the attestation required by law.

IMA note: IMA clients should contact their IMA broker rep to obtain a worksheet to track vendors and their responses as well as a GCPCA guide with screenshots to assist with the attestation.

Tips When Attesting on Your Plan’s Behalf

• Plan sponsors should gather all compliance certifications applicable to attest to all with one submission.
  • Save the certifications and record of email used to attest in a compliance folder to reference in the event of an audit.
• The updated user manual indicates that users can now view and/or edit a previous submission by accessing the GCPCA dashboard.  Previously we suggested an extra process of saving the recap from Step 4 for proof of what you submitted, but that appears to no longer be necessary per PDF pages 42 to 45 of the updated user manual.

The updated instructions and user manual can be found on CMS’ GCPCA page found here: https://www.cms.gov/marketplace/about/oversight/other-insurance-protections/gag-clause-prohibition-compliance-attestation

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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