Updated Gag Clause Attestation Submission Instructions Released by DOL

We have new Gag Clause Prohibition Compliance Attestation Instructions for 2024!  And the compliance nerds rejoice! Huzzah!

Let’s begin at the beginning… 

Group health plans[1] had an additional reporting requirement on December 31, 2023 that attested to a lack of “gag clauses” in agreements between the plan or issuer and any of the following parties:

• A health care provider,
• A network or association of providers,
• A TPA, or
• Another service provider offering access to a network of providers.

The provisions generally prohibit plans and issuers from agreeing to a contractual term (or “gag clause”) that directly or indirectly restricts the plan or issuer from making certain data and information available to certain other parties.

Notable changes made from 2023:

1. Added webform selection for the “attestation year.”
   • Attestations made in 2024, for example, have an attestation year of 2024 even though the attestation period spans from the end date of the 2023 attestation to the attestation date in 2024.
2. Added webform and template fields for the “attestation period,” or the date range that the attestation covers.
3. Employer plan types in Step 1 expanded to include 3 categories of group health plans (GHP)
   • ERISA group health plan (GHP) or sponsor of ERISA plan, including a plan sponsored or established by a union
   • (Non-Federal) governmental group health plan
   • Church plan
4. “Reporting Entity” changed to “Responsible Entity.”
   • The Responsible Entity is responsible for ensuring it annually attests, or that another party (such as its TPA or vendor) attests on its behalf, and that the Responsible Entity complies with the prohibition on gag clauses.

For more information, reach out to admin@compliancedashboard.net or review the Gag Clause Attestation Task on the Dashboard.

Practically speaking:

1. While it’s never a good idea to wait for the last minute, build in coordination time if your submitter and attester are different individuals.
   • ATTESTER: An individual with the legal authority to act on behalf of the Responsible Entity for purposes of the requirements of Code section 9824, ERISA section 724, and PHS Act section 2799A-9, and who is authorized to electronically sign the GCPCA via the CMS webform.
   • SUBMITTER: The Attester may ask someone else to complete the required fields on the webform and upload the tab-delimited text file (if attesting on behalf of more than one Responsible Entity, as described in section 1.2 in the Instructions) on the Attester’s behalf, subject to the Attester’s review and signature. The individual who completes these tasks is the Submitter.
2. Ensure that you have the authentication code to access the CMS webform, prior to attempting to submit the attestation.
3. Save your information often because your work will not be saved automatically.
4. For “How to Complete the Attestation,” go to page 7 in the GCPCA Annual Instructions.

[1] Health insurance issuers offering individual health insurance coverage, including student health insurance coverage and individual health insurance coverage issued through and association, ERISA plans (or sponsors of ERISA plans), non-federal governmental plans (such as plans sponsored by state or local governments, church plans)