Agencies Release 2024 Gag Clause Compliance Attestation Submission Instructions and User Manual

The DOL, HHS, and IRS have jointly updated the Submission Instructions and User Manual for the Gag Clause Prohibition Compliance Attestation (GCPCA), dated May 2024. Group health plans and health insurance issuers (insurers) offering group or individual health insurance coverage must annually submit a GCPCA to the DOL, HHS, and IRS (collectively, the agencies). 

The statutory provisions added by the CAA 2021 generally prohibit plans and issuers from entering into an agreement with healthcare providers or a network of providers, third-party administrators, or other service providers that offer access to a network of providers that directly or indirectly restricts the plan or issuer from making certain data and information (including cost or quality of care data and claims information) available to certain other parties (i.e., gag clauses). Specifically, plans and issuers may not enter into an agreement that:  

• Prevents the plan or issuer from disclosing cost or quality of care information or data, and certain other information, to:  

  • Active or eligible participants, beneficiaries, and enrollees of the plan or coverage.  

  • The plan sponsor.  

  • Referring providers.  

• Restricts the health plan or issuer from electronically accessing de-identified claims and encounter information or data for each participant or beneficiary in the plan or coverage, upon request and consistent with the relevant privacy regulations.  

• Restricts the plan or issuer from sharing such information with a business associate, consistent with applicable privacy regulations. 

In general, the Submission Instructions and User Manual provide clarifications and more detail about the process. Changes include definitions of key terms and a new section describing what agreements are subject to the requirements. The instructions also clarify that a single group health plan with more than one benefit package is a single responsible (reporting) entity and may submit a single attestation, even if some coverage types are insured and others are self-insured. Employers that sponsor multiple group health plans with separate plan numbers, however, must file an attestation for each plan. Although the annual attestation must be submitted by December 31, attestations may be made at any time during the year. Each attestation covers the period from the date of the last attestation through the date of the subsequent attestation.  

Although most self-funded plan sponsors will contract with TPAs or other service providers to make the attestation for the plan, the legal obligation to submit the attestation remains with the plan. Self-funded plan sponsors that do contract out the submissions should confirm that their service provider is aware of the changes and that the submission has actually been made. 

GCPCA Annual Submission Instructions, May 2024 »

GCPCA User Manual, May 2024 »