CAA 2021 Gag Clause Attestation | Carrier Reference Guide

The next Gag Clause Prohibition Compliance Attestation is due by December 31, 2024.

Published: 10.25.2024

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.
Aetna (NY, NJ, PA, DE, FL)	Pending carrier response.	Pending carrier response.
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: Go to the Gag Clause Prohibition Compliance Attestation website. Scroll down to “Resources” at the bottom of the page. Click “Enter Webform Now for a GCPCA.” Sign in and submit the attestation. For any questions about the submission process, refer to the other links in the Resources section: Frequently Asked Questions, Instructions for submitting the GCPCA, or User Manual for submitting the GCPCA.
Anthem/ Empire (NY)	Pending carrier response.	Pending carrier details.
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. However, given the unique status of level-funded, graded-funded, preferred-funded and standard- funded Facets ASO clients, Cigna Healthcare will support you by attesting on their behalf directly to the regulators before 12‌/31‌/24 (and before the annual CMS deadline in future years). An email will be sent to these clients this week. If you have traditional ASO clients, please remind them that they must provide their own submission by 12‌/31‌/24, through the portal set up by the Departments of Health and Human Services, Labor, and the Treasury (collectively, the Departments), attesting to the compliance of their ASO agreements with all providers (e.g., Cigna Healthcare and any other providers used for carve-out services). To support your clients, we have attached a letter from Cigna Healthcare that states Cigna Healthcare agreements are in compliance with the Gag Clause prohibition and that Cigna Healthcare intends to attest to as such to the Departments.
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	Pending carrier response.	Pending carrier response.
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. Highmark will file the GCPCA for all fully-insured clients by December 31, 2024.	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. Client Managers will send a letter to their ASO clients by November 1, 2024, with a link to the CMS site that provides detailed instructions on how to submit the attestation. A sample of the letter can be found here.
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. Horizon BCBSNJ Level Select groups (self and level funded) groups are responsible for completing their own GAG clause attestation form/s.
Independence Blue Cross (PA)	Pending carrier response.	Pending carrier response.
Members Health Plan of New Jersey	Pending carrier response.	Pending carrier response.
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. Self-Funded Self-funded (ASO) customers should submit their own attestation of compliance by Dec. 31, 2024, using the Confirmation of Compliance letter UnitedHealthcare has made available to them on uhc.com, which was also included in the September Connect newsletters. ASO customers wishing to have UnitedHealthcare attest for coverage on their behalf should reach out to their UnitedHealthcare representative by Nov. 1, 2024. Customers will need to sign a letter of direction confirming their request and provide requested data via an email their account team will send to them.

While these representations are true to the best of our knowledge please check the specific contract.

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.

CAA 2021 Gag Clause Attestation | Carrier Reference Guide

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