Compliance with the CAA’s Gag Clause Prohibition
The Consolidated Appropriations Act (CAA) of 2021 made a number of federal changes to the U.S. health care system, with the goal of increasing transparency.
One of the most immediate changes was the prohibition of gag clauses in contracts between insurance plans, insurance issuers, and providers.
Gag clauses are contractual provisions that restrict plans or issuers from sharing provider-specific cost information or quality-of-care information with patients, other providers, or plan sponsors. They can also prevent plans or issuers from electronically sharing de-identified claims data and other encounter information with patients and providers.
The CAA's gag clause prohibition was designed to ensure that patients have access to the information they need to make informed decisions about their care, especially regarding costs. The prohibition also allows the entirety of the CAA’s transparency changes to function.
The gag clause prohibition went into effect on December 27, 2020, but the requirement for plans/issuers to contest their compliance with the law does not go in effect until December 31, 2023. The Gag Clause Prohibition Compliance Attestation is due on 12/31 annually and must be submitted by group health plans (fully insured and self-funded) and insurance issuers. The requirement does not apply to excepted benefits, Account-based plans, standalone Dental plans, or Vision plans.
Self-funded group plans have the greatest burden with this requirement. Employers with such plans may attest themselves or may contract with their Pharmacy Benefits Managers (PBM), Third-Party Administrators (TPA), or Administrative Services Only (ASO) coordinators to facilitate the attestation. Reports must be submitted using CMS’s Health Insurance Oversight System (HIOS), and special HIOS registration is required.
For fully insured group plans, both the insurance issuer and the plan are considered to be in compliance when the insurance issuer makes its annual attestation. In other words, when the fully insured health insurance carriers inevitably make and file these attestations, both the plan and its sponsors will be in compliance. In general, employers with fully insured group health plans do not need to act unless otherwise notified by the carrier.
|Please confirm you will be completing & filing the Gag Clause Prohibition Compliance Attestation (GCPCA) for your fully insured plans before the 12/31/2023 deadline, as required by 2021 CAA federal law.||Assuming “yes,” how will you be notifying employers and their insurance agents when this has been filed?||Is there anything else your fully insured clients should know about your practices for the new annual GCPCA filing requirement?|
|Aetna (CA)||Aetna will submit the Gag Clause Prohibition Compliance Attestation on behalf of all fully-insured and small group AFA plan sponsors.||
|Anthem Blue Cross (CA)||We will file the Gag Clause Prohibition Compliance Attestation for fully insured clients by the December 31, 2023 deadline. There is no action required of them. (Also applies to Small Group MEWA, ABF, Minimum Premium, and FEHP.)||We’re emailing your groups to explain how they can make sure the attestation is submitted, along with the following confirmation of compliance:
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.
|Group health plans and issuers are required to submit an attestation each year to confirm compliance with the prohibition on gag clauses.|
|Anthem Blue Cross Blue Shield (NV)||For Fully Insured groups (including Minimum Premium MEWA, ABF and FEHB), we’re filing the Gag Clause Prohibition Compliance Attestation on their behalf by the December 31, 2023, deadline.||Broker/Consultant communications were shared in June through Broker Hub, the Broker Plus app, and Producer Toolbox. Local small group & large group employer communications have also been shared via a marketing email on June 15, 2023 along with a one-time reminder to ASO clients in early August 2023.||No response provided|
|Blue Shield of California||Blue Shield of California will be submitting an annual compliance attestation on behalf of all of our fully-insured/flex-funded groups. This attestation will be for Blue Shield’s provider contracts only. Groups that contract with a third party insurers besides Blue Shield will be responsible for coordinating attestation submissions for these other insurers’ provider contracts.||Blue Shield of California confirms it is compliant with the federal Consolidated Appropriations Act, Section 201, Gag Clauses provision. We ensure our provider contracts exclude any gag clauses which prevent the sharing of cost and quality data.||Blue Shield is committed to supporting you in complying with health coverage related regulatory requirements. Please view these FAQs for more details. Additional information on CAA and other mandates can be found on the Blue Shield Broker Connection Mandates page. If you have any additional questions, please contact your Blue Shield of California representative.|
|CCHP||Yes, CCHP will be filling the attestation before 12/31/2023. The details are currently in works, and we will update your company (W&B) when ready.||
|Health Net||Employers sponsoring a fully insured medical plan should have no action item with respect to the GCPCA. Health Net is directly responsible for completing the GCPCA, and there is no need for the employer to separately complete the attestation.||The plan will not be issuing any type of communications to the members/groups/brokers/providers regarding GCPCA (confirmation of filing completion, compliance with the attestation requirements, etc.) since it is not a regulatory requirement.||
|Kaiser Permanente||Yes, Kaiser Permanente’s appropriate reporting entities will complete the attestation submission prior to the deadline of December 31, 2023, on behalf of all fully insured employer groups.||
||Generally, for fully insured group coverage, Kaiser Permanente will insert language in the applicable contract that, notwithstanding other provisions of the contract to the contract, will allow for the sharing of cost and quality of care information and data as well as de-identified claims and encounter information and data to the extent permitted by applicable law (and the sharing of such information with business associates).|
|MediExcel Health Plan||Yes, we confirm MediExcel Health Plan has filed and completed the Gag Clause Attestation.||Confirmation upon request||Not at the moment.|
|Prominence Health Plan||Yes, Prominence will file this Attestation, as required.||We aren’t prepared to announce our communication plan yet but will be sure to include Word & Brown as soon as it’s complete.||We aren’t prepared to announce our communication plan yet but will be sure to include Word & Brown as soon as it’s complete.|
|Sharp||We plan on filing but haven’t reviewed if we will provide any formal notice.||No response provided||No response provided|
|UHC||UnitedHealthcare will make the attestation to the HHS portal as required. No action is required by the customer to attest for their fully insured business with UnitedHealthcare.||No response provided||UnitedHealthcare provider contracts are in compliance. In 2022, UnitedHealthcare reviewed our provider contracts to determine if they meet the required regulation and revised them as necessary to meet the requirements under the law. UnitedHealthcare has an annual review process to ensure compliance.|
|Western Health Advantage||Western Health Advantage (WHA) hasn't entered into any contracts or agreements with impermissible gag clauses. WHA will complete & submit the GCPCA to CMS by 12/31/23 and yearly thereafter prior to 12/31 as required. Employer groups covered by WHA do not need to submit a separate attestation.||No response provided||Western Health Advantage will complete & submit the GCPCA to CMS by 12/31/23 and yearly thereafter prior to 12/31 as required.|
Most Recent Articles