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Gag Clause Attestation and Changing Coverage

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I can't seem to find any guidance on filing the attestations where the carrier or method of funding has changed since 2020.

For example, a plan was self-insured from 2020 through 2022, then became fully insured in 2023. The fully insured carrier's attestation would not cover (in reality, even if it does on paper) the plan's compliance for 2020, 2021, and 2022 when it was self-funded. In that case, if the self-funded TPA is not filing the attestation for the plan sponsor for years before 2023 (as some are not) would the plan sponsor file an additional attestation on its own?

Presumably similar circumstances will continue to arise for non-calendar year plans that change carriers/funding methods.

Would appreciate any insight.

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Agreed that's not clear, but my reading is the employer (or the TPA if attesting on their behalf) would have to submit a GCPCA on behalf of the plan for the period prior to becoming fully insured.

The GCPCA is an annual requirement.  Because of the delay in setting it up etc., we are doing the first one by the end of '23 to cover the full period dating back to CAA enactment.  So that would cover the end of 2020 plus 2021, 2022 and YTD 2023.  Someone still needs to complete the attestation for that period when self-insured, and it wouldn't be the carrier in this case.  I don't see how the carrier attestation could satisfy that whole period when not fully insured for the duration--the carrier won't have any insight into the plan's contracts prior to changing funding arrangements.

I'm assuming the same will be true going forward where funding arrangements change mid-year, as you noted.

One last thought--if the TPA for the new self-insured offering is the same entity as acted as the carrier for fully insured, there might have a decent argument that no separate GCPCA is needed.  But even then, you probably would still need to follow the same rules for self-insured where the TPA has agreed in writing to attest.


CMS is putting on a webinar next week to "answer some common questions" that may get into these weeds: https://regtap-cms.zoomgov.com/webinar/register/WN_e6ORT5Y7T4mHjhRUHDsJPg#/registration


In the meantime, here's why I'm reading it to require the additional attestation in your situation:


Q6: What is the due date for the Gag Clause Prohibition Compliance Attestation?

The first Gag Clause Prohibition Compliance Attestation is due no later than December 31, 2023, covering the period beginning December 27, 2020, or the effective date of the applicable group health plan or health insurance coverage (if later), through the date of attestation.

Subsequent attestations, covering the period since the last preceding attestation, are due by December 31 of each year thereafter.


Q10: Can an issuer that both offers group health insurance and acts as a TPA for self-insured group health plans submit a single Gag Clause Prohibition Compliance Attestation on behalf of itself, its fully-insured group health plan policyholders, and its self-insured group health plan clients? Will the submission requirement be satisfied for the issuer and its group health plan policyholders and clients?

Yes. An issuer that both offers group health insurance and acts as a TPA for self-insured group health plans may submit a single Gag Clause Prohibition Compliance Attestation on behalf of itself, its fully-insured group health plan policyholders, and its self-insured group health plan clients. However, to avoid duplication, the Departments recommend that issuers acting as TPAs (or other service providers) and attesting on behalf of self-insured group health plans first coordinate with each plan to ensure that the group health plan does not intend to attest on its own behalf for some or all of its provider agreements.

With respect to fully-insured group health plans, the group health plan and the issuer are each required to annually submit a Gag Clause Prohibition Compliance Attestation. However, when the issuer of a fully-insured group health plan submits a Gag Clause Prohibition Compliance Attestation on behalf of the plan, the Departments will consider the plan and issuer to have satisfied the attestation submission requirement.

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Hello - I reached out to CMS with the exact same question last week and they confirmed that, YES, they do expect the employer or TPA to attest for the self-insured period (even though the webform does not specifically address a partial reporting period). This was the response:

"You are correct - the employer plan sponsor of the group health plan should attest on its own behalf for the pre-fully-insured period of time from 12/27/20-12/31/21.

And while you are also correct that the GCPCA webform does not have a specific place to enter the dates covered by the attestation when it is less than the entire period from 12/27/20-12/31/23 (or whatever date in 2023 the GCPCA is submitted), the Departments understand that any given attester may only be attesting for a portion of the time covered by the attestation. Similarly, the attestation may be made by an issuer or TPA for reporting entities that were only a client of the attester for a portion of the attestation period, or may only cover a subset of covered plan benefits or agreements covered by the written agreement with the plan, such as when the attester was not under contract with the entities listed on its reporting template for the entire attestation period (the case here when carrier attests for your client), or when the attester only covered some plan offerings while other entities provided the network for other plan offerings. In any of these cases, other entities may attest for the same plan for the remainder of the time period covered by the attestation, or for other product offerings of the plan, as the case may be.

That said, if you client wants to indicate in the "Other" column of the webform the dates covered by its attestation, it may do so.

We plan to address this when we update the Instructions in early 2024 as we are getting asked this question a lot. We will also address it during our upcoming GCPCA webinar on September 28."


Hope that helps!


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