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The Consolidated Appropriations Act (CAA) of 2021 introduced key provisions aimed at enhancing transparency in American health care. A primary objective is to help consumers gain a better understanding of their health care costs before receiving services.
 
For these transparency measures to be effective, both health plans and their contracted providers must disclose pricing information. Additionally, they must ensure that no contractual clauses exist – or must remove any – that restrict the release of this information. These clauses, known as “gag clauses,” prevent health plans or insurance issuers from sharing provider-specific cost or quality-of-care details, which undermines the CAA’s transparency efforts.
 
Upon the CAA’s enactment, health plans and providers were required to promptly eliminate any existing gag clauses from their contracts. Starting in 2023, plans must also submit an annual attestation, confirming ongoing compliance with the CAA’s gag clause prohibitions.
 
The Gag Clause Prohibition Compliance Attestation (GCPA) is due annually by December 31 and must be submitted by group medical health plans (both fully insured and self-funded) and medical insurance issuers.
 
Fully Insured plans
For fully insured plans, the insurance issuers are responsible for establishing their own contracts with providers, without direct involvement from employer plan sponsors. As a result, the responsibility for compliance with the Gag Clause Prohibition Attestation requirement generally falls on the insurance issuer.
 
For these group plans, both the insurance issuer and the plan are considered compliant once the issuer submits its annual attestation. In other words, when fully insured carriers complete and file these attestations, both the plan and its sponsors are deemed compliant. Typically, employers with fully insured group health plans do not need to take any action unless otherwise notified by the carrier in rare circumstances.
 
Self-Funded Plans
Employers with self-funded plans have a greater compliance responsibility under the gag clause prohibition requirement. Unlike fully insured plans, self-funded arrangements do not have an insurance issuer to manage the attestation on their behalf. These plans must complete the gag clause prohibition attestation related to their provider contracts, either directly or through an Administrative Services Only (ASO) provider or Third-Party Administrator (TPA).
 
Employer plan sponsors of self-funded arrangements should work closely with their TPA or ASO to coordinate and facilitate the attestation process. Attestations must be submitted through the Centers for Medicare & Medicaid Services’ Health Insurance Oversight System (HIOS), and a separate HIOS registration is required.

Group Insurance Carriers
Below is a summary of feedback gathered from a survey of W&B’s carrier partners, detailing their processes for complying with the gag clause attestation requirement.
 

• Aetna (CA)
  • Aetna will file the 2024 GCPCA on behalf of their fully insured and self-funded groups. No action is required from employers.
  • Transparency in Coverage | Aetna
• Anthem Blue Cross (CA)
  • Anthem will file the 2024 GCPCA on behalf of their fully insured groups. Employers do not need to take any action. If contacted by CMS, brokers or employers should reach out to their Anthem representative for assistance.
• Anthem Blue Cross Blue Shield (NV)
  • Information Pending.
• Blue Shield of California
  • Blue Shield will file the 2024 GCPCA for their fully insured and flex-funded groups and confirms compliance with the CAA Gag Clause provisions. No employer action is required.
• CCHP Health plan
  • Information Pending.
• Health Net
  • Health Net will file the 2024 GCPCA for their fully insured groups. Employers do not need to complete a separate attestation. For questions, employers can contact their Health Net representative.
• Kaiser Permanente
  • Kaiser Permanente will file the 2024 GCPCA for all their fully insured groups. No employer or broker action is required.
• MediExcel Health Plan
  • Information Pending.
• Prominence Health Plan (NV)
  • Prominence has filed the 2024 GCPCA and will make the filing available in their broker portal. Brokers can access the filing notification through the portal if needed.
• Sharp Health Plan
  • Sharp will file the 2024 GCPCA on behalf of their employer groups. No action is needed from employers. Sharp is also available to confirm compliance if employers or brokers inquire.
• UnitedHealthcare
  • UnitedHealthcare will file the 2024 GCPCA for their fully insured and Level Funded groups. No employer action is required.
• Western Health Advantage             
  • Information Pending.