Gag Clause Prohibition Compliance Attestation

Gag Clause Prohibition Compliance Attestation

The Consolidated Appropriations Act of 2021 prohibits gag clauses. This provision took effect December 27, 2020 and regulations still have not been issued. The government has indicated that good faith compliance is nevertheless required.

Annual attestation that the plan is complying with the no gag clause standard is required. The first attestation will be due December 31, 2023, and by December 31 each year thereafter. Note: the attestation due by December 31, 2023 must reflect compliance beginning December 27, 2020, the effective date of the provision.

The no gag clause rule prohibits plans and issuers from entering into an agreement with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan or issuer from providing, accessing, or sharing certain information related to cost or quality of care information or data or de-identified claims and encounter information, or restrict the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations.

Annually, plans and issuers must submit a Gag Clause Prohibition Compliance Attestation (GCPCA) to the Departments of Labor, Health and Human Services, and the Treasury (the Departments).

Instructions for submitting the attestation, a user manual for submitting the attestation, FAQs and an Excel template can be found on the Centers for Medicare and Medicaid Services website.

To access the Gag Clause Attestation website, the plan or issuer first needs to obtain an authentication code from the following website (https://hios.cms.gov/HIOS-GCPCA-UI) and select Don’t have a code or forgot yours and then enter an email address. Once the code has been emailed, the plan or issuer can return to the website and login to proceed with submitting the attestation.

The attestation applies to group and individual health plans, both insured and self-funded including state and local governments and church plans. It also applies to a grandfathered or grand-mothered health plan. It will not be enforced against health reimbursement accounts (HRAs) health FSA and similar account-based arrangements because the benefit design of such plans precludes the need to enter into agreements with providers and thus the gag clause is inapplicable.

For fully insured group health plans, while both the plan and the issuer are required to annually submit an attestation, if the issuer submits the attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.

Self-insured and partially self-insured plans may satisfy the requirement to provide an attestation by entering into a written agreement under which the plan’s service provider, such as a TPA, an issuer acting as a TPA, or a pharmacy benefit manager, will attest on the plan’s behalf. If the self-insured plan’s service provider fails to provide the attestation, the legal requirement to provide a timely attestation remains with the plan.

This is another requirement that plan sponsors should add to the list of requirements to be included in administrative services agreements.

FAQ guidance issued by the Departments provides that if an individual or entity believes that the gag clause prohibition is being violated, the individual or entity may contact the No Surprises Help Desk at 1-800-985-3059, submit a complaint, or contact the applicable state authority.

For ERISA plans, individuals may contact the Department of Labor for help at 1-866-444-3272.


The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

Gag Clause Prohibition Compliance Attestationhttps://www.cbiz.com/Portals/0/Images/Consolidated Appropriations Act.jpg?ver=lESUsn2aNkihU9gHLPlF_A%3d%3dThe Consolidated Appropriations Act of 2021 prohibits gag clauses. This provision took effect December 27, 2020 and regulations still have not been issued.2023-03-03T20:00:00-05:00The Consolidated Appropriations Act of 2021 prohibits gagclauses.  This provision took effect December 27, 2020 and regulationsstill have not been issued.Regulatory, Compliance, & LegislativeEmployee Benefits ComplianceNo