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Gag Clause

The Consolidated Appropriations Act, 2021 (the “CAA”) mandates that employers offering health benefits or medical insurance companies must annually attest that they have not entered into any agreements with healthcare providers or networks that restrict the provision of provider-specific cost or quality of care information. 

 

For more information on certain deadlines under the Consolidated Appropriations Act and Transparency in Coverage Rules, please see our previous legal alert here.

 

A fact sheet prepared by the Departments of Labor, Health and Human Services, and the Treasury provides additional details on reporting requirements, including data collection and analysis.

 

IMPORTANT INFORMATION:

A Gag Clause Prohibition Compliance Attestation (GCPCA) is a document confirming compliance with health insurance coverage laws. These laws prevent health plans and insurers from making agreements that restrict sharing vital information with healthcare providers and consumers. To demonstrate compliance, plans and insurers must submit an annual attestation to the Departments of Labor, Health and Human Services, and the Treasury. The first attestation is due by December 31, 2023, and subsequent ones by December 31 each year. The goal is to ensure transparency and enable better service for plan participants and beneficiaries.

 

Employers will need a confirmation of compliance from their health insurance carrier or third-party administrator (TPA) to complete the attestation.

Action Items

Action Items for Accessing and Submitting GCPCA Webform:

  1. Visit the GCPCA website at https://www.cms.gov/CCIIO/Programs-and-Initiatives/Other-Insurance-Protections/CAA.

  2. Click on "Gag Clause Prohibition Compliance Attestation."

  3. Select "Enter Webform Now."

    • If you don't have or forgot your code, click on the respective option.

      1. Provide your name and e-mail address, then click "Submit."

      2. Wait for the authentication code to be sent to your e-mail address (within 10 minutes).

        1. The received code remains active for 15 days.

      3. If you don't receive the code within 10 minutes, consider:

        1. Making another code request from the home page.

        2. Contacting the CMS Marketplace help desk at CMS_FEPS@cms.hhs.gov or 1-855-267-1515.

      4. Return to the landing page and select "Enter Webform Now."

  4. Enter your e-mail address and the received code for access.

    • The code remains valid for 15 days.

    • Stay active in the webform to keep it open; a 15-minute inactivity will end the session.

    • The last information saved by hitting "Save" will be retained.

    • Re-enter the webform within the 15-day period using the same code for access to saved information.

    • If the code expires before submission, request a new code using the same e-mail address.

    • The new code will grant access to your saved webform information.

Action Items for Completing GCPCA Webform:

  1. Enter Submitter's Contact Information:

    1. Provide Submitter's name, position, email, phone, employer.

    2. Check relevant entity type(s) Submitter works for.

  2. Enter Attester's Contact Information:

    1. Choose if Submitter = Attester, auto-fill details.

    2. If different, enter Attester's info.

  3. Enter Reporting Entity Details:

    1. Select "No" if not submitting for multiple entities.

    2. Input Reporting Entity's name, 9-digit EIN.

    3. Choose type of Reporting Entity.

    4. For ERISA plan, provide 3-digit Plan Number.

    5. Input mailing address and point of contact details.

    6. Provide email and phone of point of contact.

    7. Answer "yes" or "no" about attesting for all provider agreements.

    8. Specify type(s) of provider agreements if not all.

  4. Review Submission:

    1. Verify Submitter, Attester, and Reporting Entity info.

    2. If Attester different, notify Attester, verify email.

    3. Notify Attester about unique code email.

  5. Attest (Done by Attester):

    1. Indicate if attesting for group health plan or individual coverage.

    2. Read attestation text and certify compliance.

    3. Confirm authority to attest and accuracy of information.

    4. Electronically sign attestation.

    5. Click "Submit" to finalize attestation.

Summary of Changes Made Since 2023 Reporting

Here are the key updates made to the Gag Clause Prohibition Compliance Attestation (GCPCA) process since 2023:

  1. Attestation Year Selection: You now need to select the "attestation year" when submitting the form. For example, if you submit in 2024, the attestation year is 2024, even if it covers part of 2023.

  2. Attestation Period Details: The form now includes fields to specify the "attestation period," which is the date range the attestation covers.

  3. Expanded Group Health Plan Categories: In Step 1, the categories for group health plans have been expanded to include:

    • ERISA group health plans (including those sponsored by unions)

    • Non-Federal governmental plans

    • Church plans

  4. Terminology Update: The term "Reporting Entity" has been changed to "Responsible Entity."

  5. Clarified Entity Types: Step 3 now clarifies the types of entities, adding specific options like:

    • Third-party administrator (TPA)

    • Pharmacy benefit manager (PBM)

    • Behavioral health network manager (BHN)

    • Other third-party service providers, such as agents

  6. Provider Agreement Labels: The labels for different types of provider agreements in the form and template have been clarified, covering:

    • Medical network

    • Pharmacy benefit manager network

    • Behavioral health network

    • Other agreements

  7. Additional Information Field: A new text box has been added where you can provide "Other Limitations" or special considerations.

  8. Updated Attestation Language: The wording in the attestation has been adjusted to remove references to forward-looking agreements.

  9. Definitions Added: New definitions have been included in the appendix for terms like "Attestation Period" and "Attestation Year."

  10. Enhanced Attestation Language: The attestation now accommodates date ranges and information provided during the submission process.

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