Compliance Corner: New Gag Clause Attestations Due December 31, 2023

The Gag Clause Attestation is being taken care of by most, but not all, carriers or administrators on behalf of their customers.

The annual Gag Clause Prohibition Compliance Attestation (GCPCA) is a new requirement from the Consolidated Appropriations Act (CAA) to confirm that group health plans and health insurance issuers offering group health coverage have not entered into an agreement with a provider or TPA that would restrict the plan from providing cost or care information to plan participants, accessing de-identified claims data, or sharing information per privacy regulations with a business associate.

Attestations are to be submitted via the CMS-HIO System. The first filing in 2023 covers the period of December 27, 2020, through December 31, 2023.

Those carriers or administrators who aren’t filing on behalf of their customers provide “sub-attestations” to affirm they are compliant.*

Ultimately, the employer (i.e., plan sponsor) is responsible for the attestation.

Penalties for not filing an attestation fall under the standard IRC 4980D penalty scheme, which is $100 per day per affected individual for noncompliance.

*In the case of self-funded plans, there may be separate attestations from the Third-Party Administrator (TPA), the Pharmacy Benefit Manager, Provider Network, and, if applicable, specialty networks such as Transplant Networks or Behavioral Health providers if separate from the other options. In these scenarios, the TPA can usually assist with obtaining any necessary sub-attestations.

Information by Carrier and Product Type

Below is the most recent carrier information we have acquired for the filing requirement:

Carrier	Plan Type	Filing for Employer?
Aetna	All	Yes
Anthem (OH, KY, IN)	Fully insured and MEWA	Yes
	ASO (self-funded)	No
Humana	All	No
Medical Mutual of Ohio (MMO)	All	Yes
Paramount	All	Yes
PHP of Indiana	All	Yes
SummaCare	All	Yes
The Christ Hospital Plan	All	Yes
UnitedHealthcare	Fully insured	Yes
	Level funded or self-funded	No

If your carrier is not listed, please don’t hesitate to reach out to your ARC client advisor or the administrator. Some have not yet confirmed how they will handle these attestations.

What to Do if You Have to File: DON’T WAIT

If your insurer requires that you handle the attestation, please start the process now. Unfortunately, your ARC client advisor is unable to handle this on your behalf as we are not legally permitted to do so.

However, this process is much simpler than the instructions would have you believe or other CMS filings that we have done with clients in the past. We have a guide we can share upon request.

If you have any additional questions, please don’t hesitate to reach out to your ARC client advisor.