As the deadline for the Gag Clause Attestation approaches, it’s crucial for employers who sponsor group health plans to understand their obligations and the implications of this compliance requirement. The Gag Clause Prohibition Compliance Attestation (GCPCA) is a vital aspect of ensuring transparency and fairness in the healthcare industry. In this blog post, we delve into the essential details you need to know about the GCPCA, what carriers are doing in response to the reporting requirements, and what actions employers should take to meet their obligations.
Valhalla Business Advisors brings tools and resources to clients to support their efforts to provide high impact, cost effective, and compliant employee benefit programs. Included in compliance considerations are steps required under the CAA to provide the necessary attestation(s).
background
The GCPCA is an annual requirement for insurance carriers and plan sponsors of group health plans. It involves submitting an attestation to the Centers for Medicare and Medicaid Services (CMS) to confirm that their plans do not include prohibited gag clauses. Gag clauses are contractual terms that limit the data and information a plan or issuer can share with other parties, such as healthcare providers, TPAs, or service providers.
The GCPCA applies to various types of health plans, including fully insured, self-insured, MEC (Minimum Essential Coverage) plans, and Reference-Based Pricing plans. This means that employers of all sizes in all states must comply with this requirement. Each carrier may have a unique approach to GCPCA compliance.
The first attestation deadline is December 31, 2023, covering the period from December 27, 2020, to December 31, 2023. Subsequent attestations are due annually by December 31st, covering the previous calendar year (January 1 – December 31).
Resources and faq
- I would like to learn more about this; What is the best resource for information?
- There are many resources available in the marketplace. Some that stand out as superior to the founders of Valhalla are the CMS site specific to the Gag Clause Prohibition Attestation, as well as other curated content Valhalla principals have saved to an internal library. Please reach out to Stuart or Jens for access to additional content.
- My firms’ fact pattern appears to include multiple employers subject to this attestation; How do I make such an attestation?
- Employers complete the multiple employer attestation spreadsheet when submitting the attestation on behalf of multiple entities, such as associations or TPAs completing the attestation.
- Can I simply have my broker submit this attestation on our behalf?
- It’s not recommended for brokers to submit the attestation on behalf of employers. Employers must sign off on the attestation themselves or have their carrier/TPA do it on their behalf.
- I’m not certain what my insurer’s policy is regarding my firm’s role in completing this attestation; Where can I find more information?
- Depending on whether your vendor is listed on the table in this post-script, you may find guidance below about your insurer/TPA’s process for this attestation. If not, you should reach out to the appropriate vendor(s) and confirm. Valhalla is pleased to help you if the next steps are unclear; Please call Stuart or Jens!
The Valhalla advantage
Valhalla Business Advisors is extremely proud to bring boutique services to clients; As a client, details around topics like these attestations can feel complicated; Our team can help you. Feel free to reach out to Stuart or Jens to discuss further!
APPENDIX
| Insurer | Fully Insured | Self Funded |
|---|---|---|
| CBC | Capital Blue Cross is preparing to submit the CAA Gag Clause Prohibition Compliance Attestation (GCPCA) on behalf of fully-insured and small business ASO (5-99) group customers. Those groups do not have to take any action for this submission. | Capital Blue Cross is preparing to submit the CAA Gag Clause Prohibition Compliance Attestation (GCPCA) on behalf of fully-insured and small business ASO (5-99) group customers. Those groups do not have to take any action for this submission. Self-funded ASO groups are also required to submit the GCPCA. However, Capital is offering an option for self-funded ASO group customers to elect to have Capital submit a GCPCA on their behalf. Self-funded ASO group customers will receive communications in the coming days with details about the opt-in process and deadline should they choose to have Capital submit an attestation on their behalf. Self-funded ASO group customers electing to have Capital submit an attestation on their behalf will need to complete an online form to opt in and agree to certain terms and conditions by November 22, 2023. This deadline allows our teams time to prepare files and complete our submission to CMS prior to the December 31, 2023 deadline. There is no charge for this service, and we will issue an update on our CAA page when the submission is complete. |
| Highmark 1 | Highmark will submit GCPA’s on behalf of it’s fully-insured and cost-plus clients. Any fully-insured and cost-plus clients wanting to know the attestation was submitted on their behalf will receive official communication confirming it’s been completed. | The group health plan sponsor is required to submit the attestation on their own behalf. Highmark will provide all ASO clients with a statement confirming its compliance with the CAA’s Gag Clause Prohibition. ASO clients will still need to review contracts they may have with other vendors to ensure Gag Clause Prohibition compliance. Highmark will provide all ASO clients with a statement confirming its compliance with the CAA’s Gag Clause Prohibition. |
| UPMC | UPMC Health Plan will submit the Attestation on behalf of its fully insured and self-funded employer group clients in compliance with this year’s deadline and subsequent time frames as communicated by the Departments. Submissions will include all employer groups active with UPMC Health Plan during any portion of each submission period, including groups that are no longer active with UPMC Health Plan. Please note that you do not need to take any action. UPMC Health Plan will make a confirmation statement available after the Attestation is successfully submitted. | UPMC Health Plan will submit the Attestation on behalf of its fully insured and self-funded employer group clients in compliance with this year’s deadline and subsequent time frames as communicated by the Departments. Submissions will include all employer groups active with UPMC Health Plan during any portion of each submission period, including groups that are no longer active with UPMC Health Plan. Please note that you do not need to take any action. UPMC Health Plan will make a confirmation statement available after the Attestation is successfully submitted. |
| Florida Blue 1 | Florida Blue will file the annual attestation on behalf of all of our groups, regardless of funding type. | Florida Blue will file the annual attestation on behalf of all of our groups, regardless of funding type. |
| United Oxford 1 | UnitedHealthcare will make the attestation to the HHS portal as required for fully insured groups. | UnitedHealthcare does not submit the attestation for Level funded and Self-insured groups. UnitedHealthcare will provide a confirmation of compliance, which the customer may use to support its own attestation submission to the HHS portal. Mixed funded: UnitedHealthcare will submit the attestation for fully insured plans. The customer will need to complete the attestation for the self-funded plans. UMR and Surest will follow the UnitedHealthcare approach. The confirmation of compliance will be available by end of Q3 each year. This confirmation will go out via the Connect news and be posted in the news section of uhc.com whÂÂen it is available. The confirmation will also be available from your UnitedHealthcare account team. |
| Aetna 1 | Aetna will submit the attestations on behalf of insured plan sponsors. | Aetna will submit the attestations on behalf of Small Group and Middle Market AFA plan sponsors. The group health plan sponsor for self-insured plans is required to submit the attestation on their own behalf. |
| Geisinger | Fully-insured group and self-funded employer group coverage Geisinger Health Plan will complete and submit all required web forms, including the Excel template as applicable, to the departments on behalf of the employer for the initial and all subsequent reporting periods. No action or additional information is needed. | Fully-insured group and self-funded employer group coverage Geisinger Health Plan will complete and submit all required web forms, including the Excel template as applicable, to the departments on behalf of the employer for the initial and all subsequent reporting periods. No action or additional information is needed. |
| Horizon 1 | Horizon BCBSNJ will attest on the Department of Health and Human Services (HHS) website on behalf of its fully insured groups, as required. No action is required by the customer to attest for their fully insured business with Horizon. This is applicable to both medical and behavioral health coverage. | The group health plan sponsor is required to submit the attestation on their own behalf. Horizon will post the Certificate of Compliance intended for ASO groups on their website by the end of the Q3 2023, and each year thereafter. The Certificate of Compliance will also be made available to your Horizon account manager. Prime Therapeutics (Prime): In agreement with Prime Therapeutics, our Pharmacy Benefits Manager, Horizon BCBSNJ will also share Prime’s Certificate of Compliance on our website by the end of Q3 2023, and each year thereafter. This is only applicable to groups who have pharmacy coverage with Horizon. Horizon and Prime Therapeutics certificates of compliance can be found on the Horizon BCBSNJ website. Horizon Certificate of Compliance Prime Certificate of Compliance |
| Empire BC | Will file the Gag Clause Prohibition Compliance Attestation on their behalf. Applies to Small Group MEWA, ABF, Minimum Premium, and FEHP. | Complete their own attestation through the CMS HIOS portal by the December 31, 2023, deadline. They must work with any third-party or carveout vendor they work with for any portion of their data requiring attestation, such as carveout PBM. |
| CDPHP | CDPHP/CDPHN is prepared to attest on behalf of our fully-insured and self-insured groups by December 31, 2023 for coverage provided by CDPHP during the above referenced time frame. | Self-insured groups that are no longer active with CDPHP but had active coverage during the timeframe referenced above will be responsible for attesting on their own behalf. CDPHP can confirm compliance if requested. |
| Cigna | Cigna Healthcare will be attesting for itself and for its fully insured business. | Cigna will attest on behalf of level-funded, graded-funded, preferred funded and standard-funded Facets ASO clients only, directly to the regulators before 12/31/23 (and before the annual CMS deadline in future years). This is a change from the previous 8/23/23 email. CIGNA will Not attest on behalf of Traditional ASO clients. They must provide their own submission by 12/31/23, through the portal set up by CMS attesting to the compliance of their ASO agreements with all providers (e.g., Cigna Healthcare and any other providers used for carve-out services). |
| Emblem 1 | EmblemHealth will submit the gag clause attestation on behalf of our insured clients by the December 31, 2023, deadline. There is no action required of these clients. (Also applies to Minimum Premium plan.) | EmblemHealth will NOT be completing the required attestation on behalf of clients. As such, clients – whether self-funded or ASO – will need to provide their own attestations to the government. We encourage our ASO clients to visit the Gag Clause Prohibition Compliance Attestation | CMS page that outlines steps to ensure compliance with this section of the regulation. With this FAQ, EmblemHealth provides the following confirmation of compliance for business we administer and information we maintain: EmblemHealth represents that the administrative services provided under its administrative services only (ASO) agreements, including provider contracts, are consistent with the requirements set forth in Section 201 of the Consolidated Appropriations Act, 2021. |
| IBC 1 | Independence will submit the attestation for insured and self-funded customers by the required date from CMS. Data will not be provided to the customers directly. Independence will post an Edge article notifying the customers that the attestation was completed. | Independence will submit the attestation on customer’s behalf; data will not be provided to the customers directly. The administrative services agreements with self-funded groups will be amended to include a provision in which the self-funded group authorizes Independence to submit the attestation on behalf of the plan sponsor. Data will not be provided to the customers directly. Independence will post an Edge article notifying the customers that the attestation was completed. |
| MVP | MVP will not be submitting this attestation on behalf of any groups. | MVP will not be submitting this attestation on behalf of any groups. |
| 1 | Summarized from documents provided by by Savoy Associates |
Sample Scope of Work
