As a reminder, the Consolidated Appropriations Act of 2021 prohibits gag clauses. This provision took effect December 27, 2020. Annual attestation that the plan is complying with the no gag clause standard is required and is due by December 31 of each year.

The no gag clause rule prohibits plans and issuers from entering into an agreement with a health care provider, network or association of providers, third-party administrator (TPA), or other service provider offering access to a network of providers that would directly or indirectly restrict a plan or issuer from providing, accessing, or sharing certain information related to cost or quality of care information or data or de-identified claims and encounter information, or restrict the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations.

Annually, plans and issuers must submit a Gag Clause Prohibition Compliance Attestation (GCPCA) to the Departments of Labor, Health and Human Services, and the Treasury (the Departments).

The Departments of Labor, Health & Human Services and the Treasury have issued updates for the 2024 attestation. These updates include:

• Reporting entity has been changed to responsible entity – the definition remains the same.
• Responsible entity can be a combination of health benefits, both insured and self-funded.  If employer is attesting each separate ERISA plan would be a separate responsible entity.
• Attestation period begins the day after the prior years’ attestation date and extends to the date attestation is submitted.
  • For example, an attestation submitted on October 10, 2024, for a responsible entity that submitted its GCPCA for the prior attestation year on November 30, 2023, would have an attestation period of December 1, 2023, to October 10, 2024.

AAs a reminder, a self-funded plan can contract with a third-party vendor to attest on behalf of the plan; however, the plan ultimately remains responsible for the attestation. The insurer can attest on behalf of an insured plan if the insurer agrees in writing to perform the attestation, the employer/plan sponsor is no longer responsible.

Documents have been updated to assist in filing the 2024 attestation. These updated documents include Instructions for submitting the attestation, a user manual for submitting the attestation, and an Excel template.

The information contained in this Benefit Beat is not intended to be legal, accounting, or other professional advice, nor are these comments directed to specific situations. This information is provided as general guidance and may be affected by changes in law or regulation. This information is not intended to replace or substitute for accounting or other professional advice. You must consult your own attorney or tax advisor for assistance in specific situations. This information is provided as-is, with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.