FAQs: Gag Clause Prohibition Compliance Attestation

FAQs: Gag Clause Prohibition Compliance Attestation

What is a gag clause?

For purposes of this requirement, the government defines a gag clause as a contractual term that directly or indirectly restricts specific data and information that a health plan or insurer can make available to another party.  Prohibited gag clauses must not be included in agreements between a health plan or insurer and any of the following:

•  A health care provider
•  A network or association of providers
•  A third-party administrator (TPA)
•  Another service provider offering access to a network of providers

What gag clauses are prohibited? 

Effective December 27, 2020, clauses in certain contracts which restrict (or “gag”) disclosure of cost and quality information, or restrict access to certain de-identified data, are not allowed.

Did PAI review its existing contracts, and if needed, update them?

Yes.  Where needed, we updated applicable contracts to meet the requirements. 

What is the Gag Clause Prohibition Compliance Attestation (GCPCA)?

The GCPCA is a formal declaration from the health plan or insurer that there are no prohibited gag clauses in agreements.  The Consolidated Appropriations Act, 2021 requires this formal declaration or “attestation” to be submitted to the government annually.  

When is the GCPCA due?

Entities must attest annually by December 31. GCPCAs are accepted throughout the calendar year. After the initial attestation, each subsequent attestation covers the period from the date of the prior attestation through the date of the current attestation. The first GCPCA was due no later than December 31, 2023. 

Who must attest? 
Entities Required to Attest (Reporting Entities)Entities Not Required to Attest
  1. Insurers offering individual health insurance coverage, including:
    •  Student health insurance plans
    •  Grandfathered and grandmothered plans
    •  Policies sold on or off Exchanges
    •  Policies sold through an association
  2. Insurers offering group health insurance coverage, including:
    •  Grandfathered and grandmothered plans
    •  Policies sold on or off Exchanges
    •  All other group health insurance plans
  3. Group health plans, including the following to the extent they are considered group health plans:
    •  ERISA plans (or sponsors of ERISA plans)
    •  Non-Federal governmental plans, such as plans sponsored by state or local governments
    •  Church plans
    •  Grandfathered group health plans
  1. Self-employed individuals without employees, or “groups of one”
  2. Account-based plans, such as health reimbursement arrangements (HRAs), including individual coverage HRAs
  3. Retiree-only group health plans
  4. Issuers that do not have any provider or service agreements in the US
  5. Insurers and group health plans that offer only excepted benefits coverage, including, but not limited to:
    •  Hospital indemnity or other fixed indemnity insurance
    •  Disease-specific insurance
    •  Stand-alone dental, vision and long-term car
    •  Employer on-site health clinics
    •  Accident-only, disability and workers’ compensation
  6. Insurers that offer only short-term, limited-duration insurance
  7. Medicare and Medicaid plans
  8. State children’s health insurance program plans
  9. Basic Health Program plans

Source:  Tri-Agency Annual Submission Webform Instructions, Gag Clause Prohibition Compliance Attestation (cms.gov)

Who may submit the GCPCA?

Insurers and group health plans are required to submit the GCPCA, but they may contract with TPAs, PBMs, and other vendors to do so on their behalf.  A group may have more than one GCPCA submitted on its behalf by various vendors if there is a subset of separately-contracted administered benefits, and/or if different vendors were contracted to insure or administer the same benefits at different times throughout the period at issue.

Will PAI submit the annual GCPCA on my behalf?

For our fully insured groups: Yes, we will submit the annual GCPCA on the group’s behalf, subject to the terms of any applicable, ancillary attestation submission agreement between PAI and the group (the “Attestation Agreement”).

For our self-funded and level-funded groups: If the self-funded or level-funded group has not executed an Attestation Agreement with PAI or has not been issued a revised, operative Administrative Services Agreement with the required GCPCA language by October 1, PAI will not submit the GCPCA on the group's behalf and the group will be responsible for arranging to do so on its own behalf. 

We will submit the GCPCA on the group’s behalf according to the terms of the executed Attestation Agreement or Administrative Services Agreement, as applicable, only if and to the extent that PAI is a party to a contract with the group that is subject to the gag clause prohibition, and the group is receiving services or benefits (e.g., provider network access) as a result of that contract.

I am a group and have a vendor contract for services subject to the GCPCA. PAI is not a party to the contract. Will PAI file the GCPCA on behalf of this vendor if we supply its name and affirm it is compliant?

No. PAI will file the GCPCA only for services supplied by or through PAI.

Will you be filing the GCPCA on behalf of groups that terminated services within the time period since the last GCPCA filing?

For fully insured groups, we will file the GCPCA for groups that had coverage with us at any point during the period since the last filing.

For self-funded and level-funded groups, we will file the GCPCA for groups that have active contracts on October 1, except for those where a notice of termination has been received by that date. Any self-funded or level-funded groups with terminated contracts or that have provided notices of termination on or before October 1 must file their own GCPCAs.

Whenever we file a GCPCA for a group that had coverage with us for only a portion of the period since the last filing, our GCPCA will cover only that portion of the period during which the group had coverage with us, unless otherwise provided under an applicable Attestation Agreement or Administrative Services Agreement. In that case, the group will be responsible for ensuring that one or more separate GCPCAs are filed to cover any remaining portion of the period since the last filing, during which the group did not have coverage with us. 

I am a self-funded or level-funded group. Will PAI continue to submit my GCPCAs for future years if my status remains the same?

While we expect to continue offering this service, government refinements to the requirements are likely. As such, we may need to revisit our ability to file on behalf of our customers in the future.

Will PAI need anything from groups to file the GCPCA?

The GCPCA requires a point of contact from each group and that person’s e-mail along with other data. We may need to contact groups to ensure the accuracy of our records or fulfill the required data elements in the GCPCA. If so, please respond promptly and by the due date we provide. If responses are not timely provided by self-funded or level-funded groups, we may have to exclude them from our attestation filing. If this occurs, the excluded self-funded or level-funded groups must file their own attestation. 

I am a self-funded or level-funded plan and want to file my own GCPCA. When should I notify PAI that I want to do my own submission? 

No later than October 1. Upon request, PAI will provide the notifying group a confirmation of compliance with the gag clause provisions, covering relevant contracts to which PAI is a party.

Where can I find more information?

The GCPCA, information required to be submitted with the GCPCA, submission instructions and FAQs can be found on the government’s GCPCA webpage: Gag Clause Prohibition Compliance Attestation | CMS. Instructions are subject to updates at the government’s discretion.
 

What documentation will PAI provide to groups for whom PAI files the attestation?

Upon request and availability, PAI can forward any submission confirmation provided by CMS after filing the GCPCA. Please hold all requests until at least December 15.Accordion content.