The gag clause prohibition compliance attestation (GCPCA) under the Consolidated Appropriations Act (CAA), 2021, prohibits provider, network, and other contracts of a health plan from restricting the provision and sharing of certain provider-specific cost and quality information with groups, brokers (and other business associates of groups), referring providers, members, and prospective members. It also requires health plan issuers to annually submit a compliance attestation to the Centers for Medicare and Medicaid Services (CMS).
The gag clause prohibition compliance attestation (GCPCA) under the Consolidated Appropriations Act (CAA), 2021, prohibits certain types of contracts of a health plan from restricting the provision and sharing of certain provider-specific cost and quality information with groups, brokers, members, and prospective members. It also requires health plan issuers to annually submit an attestation to the Centers for Medicare and Medicaid Services (CMS).
A gag clause is a contractual term that directly or indirectly restricts the provision and sharing of certain provider-specific cost and quality information as well as de-identified claims information.
The first gag clause prohibition compliance attestation (GCPCA) was due no later than December 31, 2023. In future years, annual GCPCA submissions will be due by December 31.
Group health plans and health plan issuers offering group or individual health plan coverage are required to submit the annual GCPCA.
The required GCPCA submissions are not required to be posted or distributed publicly and are intended solely for submission to CMS via their website.
The first annual GCPCA covers December 27, 2020, or the effective date of the applicable group health plan or fully-insured health plan coverage (if later), through December 31, 2023.
The GCPCA applies to all commercial plans including all grandfathered, transitional (grandmothered) and non-grandfathered plans. The attestation requirement does not apply to Medicare, Medicaid, CHIP and TRICARE plans. Excepted benefit plans, such as stand-alone dental plans, and retiree plans are also exempt from the attestation requirement.
The GCPCA applies to a health plan’s contract with hospitals, physicians, and other providers; networks; third-party administrators; and other entities that contract with hospitals, physicians and other providers.
Kaiser Permanente and KPIC have amended their contracts, when necessary, to allow for the sharing of cost and quality information as well as de-identified claims and encounter information to the extent permitted by applicable law (and the sharing of such information with business associates).
Kaiser Foundation Health Plan and its health plan subsidiaries (“Kaiser Permanente”)1 submitted the required compliance attestations for all fully insured individual and group health plan coverages as well as for self-funded groups with a non-duplication agreement on December 28, 2023. Kaiser Permanente Insurance Company (KPIC) submitted all required compliance attestations for all its fully insured individuals, fully insured groups, and self-funded groups with a non-duplication agreement on December 20, 2023. All required submissions were completed prior to the first submission deadline of December 31, 2023. In future years, Kaiser Permanente2 and KPIC will submit annual compliance attestations by December 31.
Fully insured groups: The appropriate Kaiser Permanente reporting entities as well as KPIC completed the GCPCA submission by December 28, 2023, prior to the deadline of December 31, 2023.
Self-funded and level-funded customers: KPIC, Kaiser Foundation Health Plan of Washington, and Kaiser Foundation Health Plan of Washington Options, Inc., as the third-party administrator, each completed the GCPCA submission by December 28, 2023, prior to the deadline of December 31, 2023.
Terminated customers: The appropriate Kaiser Permanente reporting entities as well as KPIC completed the GCPCA submission by December 28, 2023, prior to the deadline of December 31, 2023, on behalf of all group health plan customers that had coverage during the attestation reference period, even if the group health plan’s coverage has now ended.
Kaiser Permanente and KPIC will use the standard attestation template and submit the GCPCA in tab-delimited text file format as the attestation submission instructions require.
At this time, Kaiser Permanente and KPIC do not plan to charge additional fees associated with the submission of the annual gag clause prohibition compliance attestation.
Employer groups should work with their Kaiser Permanente account contact to confirm the status of each annual GCPCA submission to CMS. Kaiser Permanente reporting entities and KPIC have submitted all required GCPCA submissions that were due December 31, 2023.
Current employer groups do not need to provide any information or take any action.
1The following entities are severally and collectively referred to here as Kaiser Permanente: Kaiser Foundation Health Plan, Inc. (for its Northern California, Southern California and Hawaii regions), Kaiser Foundation Health Plan of Colorado, Kaiser Foundation Health of Georgia, Inc., Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. Kaiser Foundation Health Plan of the Northwest, Kaiser Foundation Health Plan of Washington, and Kaiser Foundation Health Plan of Washington Options, Inc.
2See note 1.
