QUESTION: We have previously filed a Gag Clause Prohibition Compliance Attestation (GCPCA) for our self-insured group health plan. Do we need to file it again this year?
ANSWER: Yes, the GCPCA submission must be made annually. The GCPCA attests to a health plan’s (or insurer’s) compliance with the prohibition against “gag clauses” in any agreements with providers, provider networks, or entities offering provider network access—including downstream agreements entered into by plan service providers. A gag clause is any contractual term directly or indirectly restricting the plan or insurer from disclosing specified data and information, such as cost or quality of care data.
An attestation of compliance with the gag clause prohibition must be made by December 31 each calendar year. Submissions are made through CMS’s Health Insurance Oversight System (HIOS) and are accepted throughout the year. After the initial attestation, each subsequent attestation covers the period from the date of the prior attestation through the date of the subsequent attestation. For example, if a plan submitted a GCPCA on November 30, 2024, and next submits a GCPCA on November 15, 2025, that GCPCA’s “attestation period” is December 1, 2024, to November 15, 2025, and the “attestation year” is 2025.
Each year, ensure that the plan completes the GCPCA filing—and of course that it complies with the gag clause prohibition. An agency webpage provides detailed instructions and other resources. You may engage a service provider to make the submission for your self-insured plan, but keep in mind that the legal obligation remains with the plan.
For more information, see EBIA’s Self-Insured Health Plans manual at Sections XXIX.D.5 (“Gag Clause Prohibition Compliance Attestation”) and XXIII.B (“Contracting With Service Providers”). See also EBIA’s ERISA Compliance manual at Sections XXI.C.1 (“Other Reporting Requirements”) and XXX.E.16 (“Prohibition on Gag Clauses in Group Health Plan Agreements”).
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