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.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, 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:
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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. |
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.
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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) | 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. |