The Night of the Gag Clause Prohibition Compliance Attestation
The Gag Clause Prohibition Compliance Attestation, or GCPCA, is a part of the Consolidated Appropriations Act from December 2020. This attestation is now being enforced, and needs to be filed by December 31, 2023 by all individual and group health plans.
While we cannot be completely certain, the backstory of this new requirement may have come about in this manner (or we can pretend in honor of Halloween)….
Once upon a chilling Halloween night, in the quaint town of Spooksville, a mysterious and eerie event was about to unfold. The townsfolk were gathered at the annual Haunted Mansion Gala, a grand affair where they celebrated all things spooky and mysterious. Little did they know that this year’s celebration would be unlike any other, for it involved the enigmatic Gag Clause Prohibition Compliance Attestation.
The Haunted Mansion Gala was held in the grandest mansion in all of Spooksville, the Wraithwood Manor. This ancient and foreboding mansion had stood for centuries, and it was said to be haunted by the ghosts of its former owners. The Gala was a chance for the townsfolk to embrace their love for all things eerie, and they spared no expense in decorating the mansion to be even more haunting than usual.
As the clock struck midnight, the guests gathered in the grand ballroom, dressed in their most macabre costumes. Vampires, witches, and zombies roamed the room, casting an eerie glow in the dimly lit space. In the center of the room stood a grand, ornate table, covered in cobwebs, and surrounded by flickering candles. Upon it lay the Gag Clause Prohibition Compliance Attestation, a document shrouded in mystery and dread.
The Attestation was a peculiar contract, said to be cursed by a long-forgotten witch. It was believed that anyone who read it would be bound by a terrible curse. The townsfolk had long been curious about the document but were too afraid to confront it. However, this Halloween night, a brave soul named Aethelflaed decided to unravel the mystery.
Aethelflaed, dressed as an intrepid ghost hunter, approached the table with a determined look in her eyes. She picked up the Attestation, and as she read the eerie words inscribed upon it, the room grew colder, and a ghostly mist began to swirl around her. Suddenly, the spirits of Wraithwood Manor came to life, moaning and groaning, causing the guests to gasp in terror.
With trembling hands, Aethelflaed signed the Attestation, her name glowing ominously on the document. The ghosts of the mansion seemed to accept her as one of their own, the terrible curse that had bound the townspeople was finally broken, and they could all look to a glorious future freed from their ancient fears.
And so, that Halloween night in Spooksville became a tale to be told for generations, a night when the Gag Clause Prohibition Compliance Attestation was signed, and its secrets were revealed. It was a Halloween they would never forget.
Well, maybe the truth is a bit less … fantastical?
What is the GCPCA?
The Gag Clause Prohibition Compliance Attestation (GCPCA) is not a Halloween tale, nor is it nearly as terrifying as some have perceived it to be. The GCPCA requires plan sponsors to confirm that their health plans do not contain any language that:
- Blocks or bars disclosure of provider-specific costs;
- Blocks or bars disclosure of provider-specific Quality-of-Care data;
- Blocks or bars electronic access of de-identified claims information;
- Prohibits sharing any of the preceding information with a Plan Member or Business Associate.
The GCPCA specifically prohibits scenarios such as these:
- An agreement between a plan and its carrier or TPA that allows access to provider-specific cost information solely at the carrier or TPA’s discretion;
- An agreement that provides claim information on allowed amounts OR on paid amounts, but not both (network discount metrics);
- An agreement that states any of this information is strictly confidential and may not be shared with another carrier or broker for price-comparison purposes.
The GPCPA ensures plan issuers cannot prevent disclosure of costs and quality of care information to participants.
Who Must File?
Filings must be made by all individual and group health plans. This includes:
- All ERISA plans, whether fully-, self-, or level-funded;
- Non-federal government plans;
- Church plans;
- Grandfathered group health plans;
- Plans sold on or off Exchanges or associations.
Exemptions are granted to certain groups including:
- Account-based plans, such as HRAs and ICHRAs
- (Note: This is a specific exemption for GCPCA obligations, even though HRA/ICHRA are ERISA plans)
- Plans offering ONLY “excepted benefits” coverage (hospital or fixed indemnity; disease-specific coverage; dental, vision, long-term care plans; accident-only plans; worker’s compensation plans)
- Medicare/Medicaid plans and supplements
- CHIP plans, and Native American Tribal Plans
- Basic Health Programs for low-income residents
Who files the Gag Clause Prohibition Compliance Attestation depends on the type of plan in question.
- FULLY-FUNDED PLANS will typically have their GCPCA requirements met by the insurance carriers.
- SELF-FUNDED and LEVEL-FUNDED PLANS may meet GCPCA requirements by contracting the work with:
- Their Third-Party Administrator (TPA);
- An issuer acting as a TPA;
- Pharmacy Benefits Manager (PBM);
- Other service provider
We have become aware that some insurers and TPAs have determined that, for whatever reasons, they are unable or unwilling to make the attestation on behalf of their self- or level-funded clients. The responsibility for making the filing remains with the Plan, so alternative arrangements must be made.
Where multiple vendors offer different elements of network access (e.g., carrier, TPA, PBM, behavioral health vendor), each vendor may attest to the specific subset of benefits that they are responsible for administering.
How Do I File?
GCPCAs must be filed online through the Center for Medicare & Medicaid Services’ Health Insurance Oversight Systems. Hard-copy mail-in attestations will not be accepted. The GCPCA webpage includes links to FAQs, instructions, and a user manual with step-by-step instructions for submitting the attestation.
The webpage also provides a link for the reporting template and a link to the website where the attestation must be made.
Link to Instructions, User Manual, and Excel template:
Link to submit your GCPCA:
https://hios.cms.gov/HIOS-GCPCA-UI
When is the GCPCA Filing Due?
Group health plans must submit an annual attestation to the Department of Health and Human Services that the Plan is in full compliance with these requirements. The first Attestation is due no later than December 31, 2023; this covers the period of December 27, 2020 (when the CAA was made law) until December 31, 2023. Subsequent attestations will be for each year only.
IMPORTANT: Don’t wait until the last week to do this! It is very likely that the Federal online filing system will be increasingly difficult to access in the latter part of December.
HR Service Inc. will be presenting a free live Webinar on the GCPCA on Wednesday, October 11, 2023, at 10:00 a.m. Mountain Time. Please click here to enroll. If you have questions, you can also call us at 1-833-685-8400, extension 1, or email Solutions@hrservicenc.com.
Happy Halloweening and Happy GCPCA filing!
Written by: David Norton, SPHR, SHRM-SCP
Senior Human Resources Business Partner