The U.S. Department of Labor (DOL), the U.S. Department of Health and Human Services (HHS), and the Internal Revenue Service (IRS) have updated the Submission Instructions and User Manual for the Gag Clause Prohibition Compliance Attestation (GCPCA).
Background of the GCPCA
Group health plans and insurance companies cannot enter contracts with providers, provider networks, or entities offering provider network access containing a direct or indirect gag clause. A gag clause restricts a plan or insurer from disclosing certain data and information, like the cost or quality of care data. As part of this rule, plans and insurers must file an attestation of compliance annually by completing and submitting the GCPCA.
While plans and insurers may contract with a third-party provider to submit their GCPCA, they are still legally obligated to meet this requirement. Therefore, group health plans and insurers must always take care to follow up and verify that they have submitted all necessary GCPCAs in a timely fashion.
The Revised Submission Instructions
The updated Submission Instructions and User Manual provide some clarifications and details about the GCPCA submission process. The Submission Instructions contain an Appendix that lists changes made since 2023 and defines key terms. A new subsection of the Instructions clarifies what types of agreements and contracts are subject to these rules.
Furthermore, the Submission Instructions now refer to the "reporting entity" as a "responsible entity," although the definition of that role remains unchanged. A single group health plan with more than one benefit package constitutes a single responsible entity. Therefore, that group health plan may submit a single GCPCA, regardless of whether some coverage types are insured and others are self-insured. However, if employers sponsor multiple group health plans, and in the case of ERISA plans, plans with separate plan numbers, each plan is a separate responsible entity that must file its own GCPCA.
The Instructions contain a table of entities not required to file a GCPCA. The revisions to the Instructions have added information about tribal plans and multiple employer welfare arrangements (MEWAs). Additions to the list of entities exempt from filing a GCPCA include self-employed individuals with no employees, retiree-only plans, and insurers without provider or service agreements in the U.S.
Although responsible entities must submit their GCPCAs by December 31st of each year, the updated Instructions clarify that responsible entities may submit their GCPCAs at any time throughout the year. After a responsible entity has submitted an initial attestation, each subsequent attestation covers the period running from the date of the previous GCPCA through the date of the next GCPCA. In contrast, the attestation year is generally the same as the calendar year.
The Revised User Manual
The federal agencies significantly expanded the User Manual for GCPCAs from 39 to 63 pages. The User Manual now provides more detailed technical guidance on how a responsible entity should submit the GCPCA. The Manual also contained an updated template in an Excel spreadsheet format for insurers or third-party administrators to use when submitting GCPCAs on behalf of several responsible entities.
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