June 18, 2024
The Departments of Labor, the Treasury, and Health and Human Services (collectively, “the Departments”) recently issued the updated Annual Submission Instructions and User Manual to facilitate the Gag Clause Prohibition Compliance Attestation (“GCPCA”) for 2024.
Briefly, group health plans and health insurance carriers are prohibited from entering into an agreement with a health care provider, network or association of providers, third-party administrators (“TPAs”), or other service provider offering access to a network of providers, that directly or indirectly restricts the plan or carrier from:
A group health plan or carrier must annually attest that, for the period of the attestation, it has not entered into any agreements that violate the gag clause prohibition. The annual attestation is submitted through the Centers for Medicare and Medicaid Services (“CMS”) via a webform on the GCPCA homepage. The first attestation was due by December 31, 2023. The next attestation is due by December 31, 2024.
There are a handful of changes made to the information as follows:
Employers should begin to prepare for compliance with the gag clause attestation for Attestation Year 2024, due no later than December 31, 2024.
For fully insured group health plans, the carrier is responsible for submitting the attestation. The employer should confirm that the carrier will submit on behalf of the plan.
For self-funded group health plans (including level-funded plans), the plan sponsor (the employer) is responsible for compliance and remains legally responsible for the attestation. In many cases, the employer will need to act as the Responsible Entity and submit the annual attestation on behalf of the plan.
In some cases, the TPA or other third party will submit the attestation on behalf of the plan. Employers looking to have a TPA or other third party submit the attestation on the plan’s behalf should confirm this in writing with the applicable vendor.
Further, if there are carved out vendors (e.g., PBMs, BHMs) with a contract subject to this provision, employers should confirm no gag clauses exist and either, through written agreement, have the vendor submit the attestation on behalf of the plan or prepare to file on the carve-out portion of the arrangement.
A reminder on the Gag Clause Attestation will be sent out closer to the December 31, 2024, due date.
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