Annual Gag Clause Submission Due by December 31
As you may recall, beginning in 2024, self-funded group health plans became subject to a new annual requirement: the Gag Clause Prohibition Compliance Attestation (GCPCA). As a reminder, the Consolidated Appropriations Act, 2021 (CAA) prohibited gag clauses in health plan network agreements. A gag clause is any contractual term directly or indirectly restricting the plan or insurer from disclosing specified data and information, such as cost or quality of care data.
While insurance carriers are responsible for the GCPCA for fully-insured plans, health plan sponsors are responsible for the GCPCA on behalf of self-funded plans and must ensure the plan TPA is making the attestation, or file it themselves. A group health plan with more than one benefit package may submit a single attestation even if some coverage types are insured and others are self-insured. For employers that sponsor multiple group health plans, a separate attestation is required for each plan.
An attestation must be made each calendar year by December 31. Submissions are made through CMS’s Health Insurance Oversight System (HIOS) and are accepted throughout the year. After the initial attestation, each subsequent attestation covers the period from the date of the prior attestation through the date of the subsequent attestation. For example, if a plan submitted its first GCPCA on November 30, 2023, and submits its second GCPCA on November 15, 2024, the second GCPCA’s “attestation period” would be December 1, 2023, to November 15, 2024, and the “attestation year” would be 2024.
You should make sure that the plan annually files a GCPCA (and of course that the plan complies with the underlying prohibition). An agency website provides detailed instructions and other resources. You may engage a service provider to make the submission for your self-insured plan, but keep in mind that the legal obligation remains with the plan.
Agency Website: www.cms.gov/marketplace/about/oversight/other-insurance-protections/gag-clause-prohibition-compliance-attestation
Please visit www.moreton.com/news-events/ for more information and to view other client alerts. This Client Alert was written by Carolyn Cox, who provides our clients with compliance services. For additional questions, please contact Carolyn at 801-715-7110 or [email protected].
© 2024 by Moreton & Company. This Client Alert is intended to alert recipients to recent legal developments. It does not constitute the rendering of legal advice or recommendations and is provided for your general information only. If you need legal advice upon which you can rely, you must seek an opinion from your attorney.
