Although the end of the year seems far away, employers should start preparing for the anti-gag clause attestations for their group health plans that are due December 31. Namely, employers need to determine who is completing the attestation for their plan.

As background, the Consolidated Appropriations Act, 2021 (CAA) prohibits group health plans from entering into contracts with gag clauses, effective December 27, 2020. A gag clause is any term that directly or indirectly restricts the plan from: accessing provider-specific cost or quality of care information or data, electronically accessing de-identified claims and encounter information or data, or from sharing these types of information or data. This generally means that third party claims administrators (TPAs) and insurers can no longer restrict a plan’s access to certain data by claiming that such data is proprietary in nature or by controlling the plan’s access to the data at the TPA’s or insurer’s sole discretion.

Plans are required to submit an annual attestation of compliance with the CAA’s gag clause prohibition. This attestation is made by submitting a Gag Clause Prohibition Compliance Attestation (GCPCA) through the Health Insurance Oversite System (HIOS). The first annual attestation is due December 31 of this year, and employers should take the following steps to prepare:

1. Ensure that contracts with health insurance TPAs and insurers do not contain prohibited provisions.
2. Confirm if your plan’s insurer or TPA is submitting the GCPCA on behalf of the plan:
   • For fully-insured plans, the plan and the insurer are each required to annually submit the GCPCA. However, the insurer’s submission of the GCPCA will satisfy the plan’s attestation requirement. Employers with fully-insured plans should confirm with the insurer that the GCPCA has been submitted.
   • For self-funded plans, the TPA can submit the GCPCA on behalf of the plan if there is a written agreement in place that the TPA will do so. Even so, the legal requirement to timely submit the GCPCA remains with the plan. Employers with self-funded plans should contact the plan’s TPA to determine if the TPA will submit the GCPCA on behalf of the plan, and if so, ensure there is a written agreement in place.

The December 31 GCPCA submission deadline will be here before we know it, so employers should start preparing now to avoid any surprises.