Gag Clause Attestations Due 12/31/24 | Carrier Reference Guide
The next Gag Clause Prohibition Compliance Attestation is due by December 31, 2024.
Published: 11.22.2024
One of the lesser-known parts of the Consolidated Appropriations Act (CAA) of 2021 is the prohibition on “gag clauses” within provider agreements that restrict access to price and quality information. Under the CAA 21, these gag clauses have been prohibited since December 27, 2020, but they only gained prominence recently when federal guidance was issued on February 23, 2023, in the form of agency FAQs. The FAQs make it clear that: (1) gag clauses cannot be included in a health plan contract, and (2) attestations must be filed by or on behalf of the plans indicating that such gag clauses are not in place.The first Gag Clause Prohibition Compliance Attestation (GCPCA), covering the period from December 27, 2020, through the end of 2023, was due by December 31, 2023. After December 31, 2023, GCPCAs are due by December 31 of each year, covering the period since the last preceding GCPCA. The next GCPCA is due by December 31, 2024, covering the period since the last preceding attestation.
The gag clause prohibition requirements apply to virtually all employer-sponsored health plans, including fully insured and self-insured group health plans subject to ERISA, non-Federal governmental plans, church plans, and grandfathered plans.
With respect to fully insured plans, plan sponsors are allowed to rely on their carriers to satisfy this reporting requirement on their behalf. For self-funded and level-funded plans, the FAQs specifically acknowledge that employers may enter into a contract with their TPA to complete the attestation on their behalf; however, the legal obligation to file the attestation does ultimately remain with the plan sponsor.
Groups with fully insured coverage should verify that their carriers will be completing this requirement for them, as should those that offer self-funded or level-funded coverage. In all cases, verification should be in writing. Employers that offer self-funded or level-funded coverage should add language to their TPA or carrier administrative service agreement specifying that: (1) gag clauses may not be part of any plan contract, and (2) the TPA or carrier will file all attestations necessary on the group’s behalf
| Carrier | Fully Insured Group Plans: | Self/Level Funding Group Health Plan Sponsors (including mixed funded)*: *While these representations are true to the best of our knowledge please check the specific contract. |
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| Aetna (NY, NJ, PA, DE, CT, FL) | Aetna will not be releasing an external broker release regarding Gag Clause Prohibition Attestations for PY 2024. Instead, Aetna provided the following information on 11/14/2024 which applies to all Aetna Fully Insured , Self-Funded, and AFA groups. “Gag Clause attestation is due on 12/31/2024. Aetna will file the attestation on behalf of all Fully Insured and Self-Funded plan sponsors who have Aetna coverage during any month of 2024. No action is required by the plan sponsor or broker.” |
Aetna will not be releasing an external broker release regarding Gag Clause Prohibition Attestations for PY 2024. Instead, Aetna provided the following information on 11/14/2024 which applies to all Aetna Fully Insured , Self-Funded, and AFA groups. “Gag Clause attestation is due on 12/31/2024. Aetna will file the attestation on behalf of all Fully Insured and Self-Funded plan sponsors who have Aetna coverage during any month of 2024. No action is required by the plan sponsor or broker." |
| Allstate (FL) | Pending carrier response. |
Please note, the following information applies only to groups who have Allstate Benefits major medical as their provider. Allstate Benefits self-insured “active” clients received this communication. From December 20, 2023, on, Allstate can confirm for active Self-Funded Program Plans through Allstate Benefits that all of the agreements that support your plan through the program, including network agreements, are in compliance with the Gag Clause Prohibition. If you had other coverage during this period, you will need to get confirmation from your prior carriers on your compliance. Completing your attestation Active Groups that would like Allstate Benefits to complete the attestation on their behalf, will need to attest to Allstate that all of their plans since December 20, 2023, are in compliance with the Gag Clause Prohibition as outlined above. If the group has questions about their compliance for plans not associated with Allstate Benefits, they will have to consult their previous carrier or their legal counsel. The first round of the Gag Clause Prohibition Attestation emails went out on 11/11/24. The employer survey/questionnaire is now open and will remain open until 12/13/24 at midnight. Allstate recently received some emails and calls regarding the Gag Clause Prohibition Compliance Attestation link being inaccessible for some groups. Allstate sincerely apologizes for any inconvenience caused. The issue has now been resolved, and the link should be accessible to everyone. Survey cannot be completed by the Agent. Please give it another try! As a reminder:
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| Amerihealth NJ | Fully insured customers don’t need to take any action. AmeriHealth will submit attestations on their behalf. |
Action is needed from self & level-funded customers by November 1, 2024.
AmeriHealth Administrators will submit the annual attestation covering the dates of December 27, 2023 through December 31, 2024 on behalf of all self-funded customers that are active customers as of December 1, 2024, and submit the required data per the link below. Self-funded customers, however, can opt-out of having AmeriHealth Administrators submit the GCPCA on their behalf, meaning they will be responsible for submitting the GCPCA to CMS directly prior to the December 31, 2024 deadline. For self-funded customers who have AmeriHealth Administrators medical coverage but carve out prescription drug or behavioral health services to other vendors, AmeriHealth Administrators cannot file the attestation for pharmacy and behavioral health provider contracts. We are also mailing a letter to our self-funded customers beginning this week with these details. All Self and Level-funded customers, whether they choose to opt-out of having AmeriHealth Administrators submit on their behalf or request AmeriHealth Administrators to submit the attestation on their behalf, must notify us by November 1, 2024 by completing an online form to let AmeriHealth know if they want AmeriHealth Administrators to submit the attestation on their behalf or if they intend to submit it directly. The Employer Identification Number (EIN) and Client Identification Number (CID) readily available prior to visiting the form. For self-funded customers who opt out, they should follow these steps to submit the Gag Clause Attestation to CMS directly:
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| Anthem/ Empire (NY & CT) | For ASO and Fully Insured groups (including Minimum Premium MEWA, ABF and FEHB), Anthem is filing the Gag Clause Prohibition Compliance Attestation on their behalf by the December 31, 2024, deadline. In Anthem’s communication to ASO and Fully Insured clients, Anthem stated that they will provide them with confirmation of compliance for the business and information that Anthem administers and maintains. Anthem provided the following statement regarding their Administrative Service Agreements: “Anthem represents that the administrative services provided under its Administrative Services Agreements are consistent with the requirements set forth in Section 201 of the Consolidated Appropriations Act, 2021.” When the gag clause attestation submission is complete, Anthem will publish an article in EmployerAccess Latest News to let clients know the attestation has been completed. Anthem will also let brokers/consultant know through the Broker Hub, the Broker Plus app, Producer Toolbox, and Anthem Consultant Hub channels at: https://anthembrokerhub.com/ |
For ASO and Fully Insured groups (including Minimum Premium MEWA, ABF and FEHB), Anthem is filing the Gag Clause Prohibition Compliance Attestation on their behalf by the December 31, 2024, deadline. In Anthem’s communication to ASO and Fully Insured clients, Anthem stated that they will provide them with confirmation of compliance for the business and information that Anthem administers and maintains. Anthem provided the following statement regarding their Administrative Service Agreements: “Anthem represents that the administrative services provided under its Administrative Services Agreements are consistent with the requirements set forth in Section 201 of the Consolidated Appropriations Act, 2021.” When the gag clause attestation submission is complete, Anthem will publish an article in EmployerAccess Latest News to let clients know the attestation has been completed. Anthem will also let brokers/consultant know through the Broker Hub, the Broker Plus app, Producer Toolbox, and Anthem Consultant Hub channels at: https://anthembrokerhub.com/ |
| Cigna (NJ, PA, DE, FL) | Consistent with last year’s process, Cigna Healthcare will be attesting for itself and for its fully insure business on or before 12/31/2024. Fully Insured clients may chose to rely on the Cigna Healthcare attestation. |
Cigna Healthcare does not intend to attest on behalf of Administrative Services Only (ASO) clients. |
| Cigna + Oscar | Pending carrier response. | Pending carrier response. |
| Cigna Administered by Oscar | Pending carrier response. | Pending carrier response. |
| Connecticare (CT) | Pending carrier response. | Pending carrier response. |
| Emblem Health (NY) | Pending carrier response. | Pending carrier response. Pending carrier response. |
| Florida Blue | Florida Blue will file the annual gag clause attestation on behalf of all of their groups administered on our Florida Blue and new ASO operational platforms, regardless of group size or funding type, for the provider contracts that we directly control. Each attestation will include all active and former groups who were under contract during the reporting period. How has Florida Blue implemented the requirement to eliminate gag clauses in its provider contracts? When the CAA was passed in December 2020, Florida Blue sent a notification to all of our providers that any gag clauses in existing provider contracts will no longer be honored (or permitted in future contracts) in order to comply with the law. When do gag clause attestations have to be submitted? Group health plans and health insurers must submit an attestation each year to confirm that they have not entered into any prohibited contractual restrictions with providers. The first attestation was due by December 31, 2023, and covers the time period from December 2020 through December 2023. Subsequent attestations will be due by December 31 of each year for that calendar year. Will Florida Blue be asking groups to submit information to support the annual attestation? Not at this time. Based on the current attestation data requirements, we do not anticipate requesting additional information from our employer groups. Will Florida Blue be charging groups a separate fee for this annual attestation? Not at this time. However, this is subject to change if there are future revisions to the data requirements for subsequent attestations. |
Florida Blue will file the annual gag clause attestation on behalf of all of their groups administered on our Florida Blue and new ASO operational platforms, regardless of group size or funding type, for the provider contracts that we directly control. Each attestation will include all active and former groups who were under contract during the reporting period. How has Florida Blue implemented the requirement to eliminate gag clauses in its provider contracts? When the CAA was passed in December 2020, Florida Blue sent a notification to all of our providers that any gag clauses in existing provider contracts will no longer be honored (or permitted in future contracts) in order to comply with the law. When do gag clause attestations have to be submitted? Group health plans and health insurers must submit an attestation each year to confirm that they have not entered into any prohibited contractual restrictions with providers. The first attestation was due by December 31, 2023, and covers the time period from December 2020 through December 2023. Subsequent attestations will be due by December 31 of each year for that calendar year. Will Florida Blue be asking groups to submit information to support the annual attestation? Not at this time. Based on the current attestation data requirements, we do not anticipate requesting additional information from our employer groups. Will Florida Blue be charging groups a separate fee for this annual attestation? Not at this time. However, this is subject to change if there are future revisions to the data requirements for subsequent attestations. |
| Highmark (DE, PA) | Highmark conducted a review of relevant participating provider and vendor contracts and determined that we are in compliance with CAA rules regarding gag clause prohibitions.
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Highmark conducted a review of relevant participating provider and vendor contracts and determined that we are in compliance with CAA rules regarding gag clause prohibitions.
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| Horizon BCBSNJ |
Since the Gag Clause Prohibition Attestation rules are the same as last year, Horizon BCBSNJ will not be sending out a broker brief regarding this annual requirement. Horizon BCBSNJ will complete the attestation form/s for fully insured groups. |
Since the Gag Clause Prohibition Attestation rules are the same as last year, Horizon BCBSNJ will not be sending out a broker brief regarding this annual requirement. |
| Independence Blue Cross (PA) | As required by the CAA, self-funded employers must submit a Gag Clause Prohibition Compliance Attestation (GCPCA) annually to the Centers for Medicare & Medicaid Services (CMS) by December 31, 2024. Fully insured customers don’t need to take any action. Independence BC (IBX) and Independence Administrators will submit attestations on their behalf. To view the detailed Independence Edge Article, click here: 2024 Gag Clause Attestation |
Action is needed from self-funded customers by November 1, 2024. Independence BC and Independence Administrators will submit the annual attestation covering the dates of December 27, 2023, through December 31, 2024, on behalf of all self-funded customers that are active customers as of December 1, 2024, and submit the required data per the link below. IBX also mailed a letter to their self-funded customers beginning the week of 10-3-2024 with these details: This year, IBX is asking all self-funded customers to go to an online form to let us know if they want IBX and Independence Administrators to submit the attestation on their behalf or if they intend to submit it directly. Self-funded customers can opt-out of having IBX and Independence Administrators submit the Gag Clause Prohibition Compliance Attestation (GCPCA) on their behalf, meaning they will be responsible for submitting the GCPCA to CMS directly prior to the December 31, 2024, deadline. For self-funded customers who have IBX or Independence Administrators medical but carve out prescription drug or behavioral health services to other vendors, IBX and Independence Administrators cannot file the attestation for pharmacy and behavioral health provider contracts. We are also mailing a letter to our self-funded customers beginning this week with these details. For self-funded customers who opt-out, they should follow these steps to submit the Gag Clause Attestation to CMS directly:
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| NY Health Alliance | Pending carrier response. | Pending carrier response. |
| United Healthcare/Oxford (NY, NJ, PA, DE, CT, FL) | By Dec. 31, 2024, UnitedHealthcare will attest to the Centers for Medicare & Medicaid Services (CMS) on behalf of fully insured and level funded customers that UnitedHealthcare completed the annual Gag Clause Prohibition Compliance Attestation (GCPCA), confirming compliance with the Gag Clause prohibition. |
Level-Funded By Dec. 31, 2024, UnitedHealthcare will attest to the Centers for Medicare & Medicaid Services (CMS) on behalf of fully insured and level funded customers that UnitedHealthcare completed the annual Gag Clause Prohibition Compliance Attestation (GCPCA), confirming compliance with the Gag Clause prohibition. |
The Information herein should not be construed as legal or tax advice in any way. The carrier contract pevails.
Regulations, guidance and legal opinions continue to change. The preparer has gathered public information and has attempted to present it in an easily readable and understandable format. Situations vary, technical corrections and future guidance may vary from what is discussed in the presentation.
This is meant for informational content only. You should seek the advice of your attorney or tax consultant for additional or specific information.
