Are You Prepared for the 2024 CAA Gag Clause Attestations?

The deadline for 2024 CAA gag clause attestations is just around the corner. Employers should act now to ensure their group health plan contracts are compliant and attestations are timely submitted.

To review, the CAA prohibits group health plans and insurers from directly or indirectly entering contracts offering access to provider networks that contain certain types of “gag clauses.” In the healthcare context, gag clauses are contract terms that restrict information, including provider network rates and deidentified claims data, that plans or insurers can make available to another party, such as a business associate. An example is a provision in a TPA contract that prohibits the plan’s access to network rates because the TPA considers the information to be proprietary.

The CAA also requires plans and insurers to annually attest to compliance with the gag clause prohibition via a CMS webform. The next attestation of compliance is due by December 31, 2024, attesting to compliance for contracts entered since the first attestation made in 2023.

With a fully insured plan, an insurer can agree to submit the required attestation on behalf of the plan. A self-insured or partially self-insured plan may satisfy the attestation requirement by entering into a written agreement under which the plan’s service provider(s), such as a TPA, submits the attestation for the plan; however, the plan remains responsible for compliance.

Accordingly, employers should coordinate the submission of their annual attestation(s) with each applicable carrier or plan service provider to ensure it is timely submitted. For this year’s attestation, some carriers and service providers are providing employer response deadlines of October 31, 2024, if the employer wishes for the service provider to submit the attestation on their behalf. So, employers should review their communications from plan service providers and respond timely.

For further information on the gag clause prohibition and attestation requirements, please review the available resources on the designated CMS Gag Clause Prohibition Compliance Attestation website and download a copy of the PPI publication CAA Gag Clause Prohibition and Attestation: A Guide for Employers.