Follow The Instructions, and Your Gag Clause Attestation Will Turn Out Fine

In May of this year, the Internal Revenue Service and the Departments of Labor and Health and Human Services released updated versions of the Submission Instructions and User Manual for the Gag Clause Prohibition Compliance Attestations (GCPCAs) due by the end of 2024. This update includes several notable changes to the annual submission process for group health plans and issuers offering group or individual health insurance coverage.

Before we delve into the updates, let’s briefly review the GCPCAs. The Consolidated Appropriations Act of 2021 included several statutory provisions that prohibit plans and issuers from entering into agreements with healthcare providers or a network of providers, third-party administrators, and other service providers that directly or indirectly restrict the plan or issuer from making specific data and information available to certain other parties. Specifically, plans and issuers may not enter into an agreement that:  

1. Prevents the plan or issuer from disclosing cost or quality of care information or data, and certain other information, to: 
   
   • Active or eligible participants, beneficiaries, and enrollees of the plan or coverage;
   • The plan sponsor and/or
   • Referring providers.

2. Restricts the health plan or issuer from electronically accessing de-identified claims data for each participant or beneficiary in the plan or coverage, upon request and consistent with the relevant privacy regulations.  
3. Restricts the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations. 

Plans and issuers must attest annually via the Centers for Medicare and Medicaid Services’ online portal that their agreements do not include these prohibited gag clauses. A single group health plan with more than one benefit package may submit a single attestation, even if some coverage types are fully insured and others are self-funded. Employers that sponsor multiple group health plans with separate plan numbers must file an attestation for each plan.

The annual deadline for filing is December 31^st, but attestations may be made at any time during the calendar year. Each attestation covers the period from the date of the last attestation through the date of the subsequent attestation.

Noteworthy modifications to the instructions, webform, and Excel template in the 2024 guidance released this spring include: 

1. The term “Reporting Entity” has been changed to “Responsible Entity” to define parties required to attest/ensure an attestation is submitted on their behalf.
2. Additional details regarding scenarios in which attestations are required are now available. For example, the instructions now clearly outline that attestations are required for self-funded and fully insured group health plans (including those sponsored by unions). In contrast, attestations are not required for retiree-only group health plans. 
3. A new webform selection is now available for the “attestation year.” Attestations made in 2024 should have a 2024 attestation year, even if the attestation period bridges two calendar years (i.e., from the date the 2023 attestation was submitted in 2023 through the date the 2024 attestation is submitted in 2024).
4. New webform and template fields are now available for the “attestation period.” These allow the plan/issuer to outline the specific date range the attestation covers.
5. A “Definitions” section is now available in the submission instructions.

Carrier attestations satisfy the reporting requirement for fully insured plans, meaning employers with fully insured plans don’t need to submit their own attestations. Groups with these types of plans should verify in writing that their carrier(s) will attest promptly.

Although most self-funded plan sponsors will likely contract with TPAs or other service providers to attest for their plan(s), the responsibility remains with the plan. Self-funded plan sponsors that contract out the submissions should confirm that their vendor partner is aware of the changes and that a timely attestation has been made.

In addition to submitting the required attestations, employers can take the following steps to ensure compliance with gag clause regulations:

• Review their contracts with service providers, including third-party administrators, to ensure they do not contain gag clauses. If any are found, they should be removed or renegotiated. 
• Educate their employees, plan participants, and beneficiaries about their rights to access cost and quality of care information. Encourage transparency and open communication. 
• Monitor compliance with the prohibition on gag clauses regularly. Ensure that service providers are not restricting the disclosure of relevant information.

MZQ Consulting will offer a convenient Gag Clause Compliance Attestation service this year. Please email us at engage@mzqconsulting.com for more information about our new solution.

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