For purposes of this requirement, the government defines a gag clause as a contractual term that directly or indirectly restricts specific data and information that a health plan or insurer can make available to another party.  Prohibited gag clauses must not be included in agreements between a health plan or insurer and any of the following:

•  A health care provider
•  A network or association of providers
•  A third-party administrator (TPA)
•  Another service provider offering access to a network of providers

Effective December 27, 2020, clauses in certain contracts which restrict (or “gag”) disclosure of cost and quality information, or restrict access to certain de-identified data, are not allowed.

Yes.  Where needed, we updated applicable contracts to meet the requirements. 

The GCPCA is a formal declaration from the health plan or insurer that there are no prohibited gag clauses in agreements.  The Consolidated Appropriations Act, 2021 requires this formal declaration or “attestation” to be submitted to the government annually.  

Entities must attest annually by December 31. GCPCAs are accepted throughout the calendar year. After the initial attestation, each subsequent attestation covers the period from the date of the prior attestation through the date of the current attestation. The first GCPCA was due no later than December 31, 2023. 

Source:  Tri-Agency Annual Submission Webform Instructions, Gag Clause Prohibition Compliance Attestation (cms.gov)

Insurers and group health plans are required to submit the GCPCA, but they may contract with TPAs, PBMs, and other vendors to do so on their behalf.  A group may have more than one GCPCA submitted on its behalf by various vendors if there is a subset of separately-contracted administered benefits, and/or if different vendors were contracted to insure or administer the same benefits at different times throughout the period at issue.

For our fully insured groups: Yes, we will submit the annual GCPCA on the group’s behalf, subject to the terms of any applicable, ancillary attestation submission agreement between PAI and the group (the “Attestation Agreement”).

We will submit the GCPCA on the group’s behalf according to the terms of the executed Administrative Services Agreement.

No. PAI will file the GCPCA only for services supplied by or through PAI.

For fully insured groups, we will file the GCPCA for groups that had coverage with us at any point during the period since the last filing.

For self-funded and level-funded groups, we will file the GCPCA for groups that have active contracts on October 1, except for those where a notice of termination has been received by that date. Any self-funded or level-funded groups with terminated contracts or that have provided notices of termination on or before October 1 must file their own GCPCAs.

Whenever we file a GCPCA for a group that had coverage with us for only a portion of the period since the last filing, our GCPCA will cover only that portion of the period during which the group had coverage with us, unless otherwise provided under an applicable Attestation Agreement or Administrative Services Agreement. In that case, the group will be responsible for ensuring that one or more separate GCPCAs are filed to cover any remaining portion of the period since the last filing, during which the group did not have coverage with us. 

While we expect to continue offering this service, government refinements to the requirements are likely. As such, we may need to revisit our ability to file on behalf of our customers in the future.

The GCPCA requires a point of contact from each group and that person’s e-mail along with other data. We may need to contact groups to ensure the accuracy of our records or fulfill the required data elements in the GCPCA. If so, please respond promptly and by the due date we provide. If responses are not timely provided by self-funded or level-funded groups, we may have to exclude them from our attestation filing. If this occurs, the excluded self-funded or level-funded groups must file their own attestation. 

No later than October 1. Upon request, PAI will provide the notifying group a confirmation of compliance with the gag clause provisions, covering relevant contracts to which PAI is a party.

The GCPCA, information required to be submitted with the GCPCA, submission instructions and FAQs can be found on the government’s GCPCA webpage: Gag Clause Prohibition Compliance Attestation | CMS. Instructions are subject to updates at the government’s discretion.

Upon request and availability, PAI can forward any submission confirmation provided by CMS after filing the GCPCA. Please hold all requests until at least December 15.Accordion content.