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Gag Clause Attestations Due December 31, 2023

Tuesday, December 12, 2023

Group health plans and health insurance issuers must annually attest they comply with the federal prohibition on gag clauses. The first gag clause attestation is due by December 31, 2023, covering the period beginning December 27, 2020, through the date of attestation. 

Fully insured groups (as of December 27, 2020, through December 31, 2023), do not have to file as their insurance carrier will file on their behalf.  If the contract was self-funded for any time during that period, the group may have to attest. 

In most cases, self-funded groups must file their own gag clause attestations. If your group has a self-funded plan, please review the carrier information below to learn what you are responsible for.

Aetna

    • Fully insured groups - No action is required.
      • Also applies to Small Group and Middle Market AFAs.
    • Self-funded groups - Must complete their attestation via the CMS portal by December 31, 2023.

Anthem (VA)

    • Fully insured groups - No action is required.
      • Also applies to Small Group MEWA, ABF, Minimum Premium, and FEHP.
    • ASO groups - If the group requested by August 15, 2023 via the form that Anthem sent, Anthem will attest on their behalf.
      • If they did not complete the form, they must complete their attestation via the CMS portal by December 31, 2023. They must work with any third-party or carveout vendor for any portion of their data requiring attestation, such as carveout PBM.
    • JAA & MCS groups - Must complete their attestation via the CMS portal by December 31, 2023. 

BCBS of NC

    • Fully insured groups - No action is required.
    • Balance-funded groups - No action is required unless they have opted out.
    • Self-funded groups - Must complete their attestation via the CMS portal by December 31, 2023.

Cigna

    • Fully insured groups - No action is required.
    • Self-funded/ASO groups - Must complete their attestation via the CMS portal by December 31, 2023.

Optima (Sentara Health Plans)

    • Fully insured groups - No action is required.
    • Self-funded groups - Optima sent a survey to employers earlier this year. If they completed the survey by October 1, 2023, Optima will attest on their behalf.
      • If the group did not complete the survey, they must complete the attestation via the CMS portal by December 31, 2023.

UnitedHealthcare

    • Fully insured groups - No action is required.
    • Self-funded groups - Must complete their attestation via the CMS portal by December 31, 2023.
      • If the group has any special arrangements, such as CSP/GSPs and carveouts, including OptumRx Direct, they must submit the attestation.
      • If the group has other networks or TPA arrangements, the employer must gather information from those providers to complete their attestation.

We recently held a webinar discussing gag clause attestations. If you have any questions, including who must attest, how to attest, and the penalties for failing to attest, you can download the presentation PDF here or view the recorded webinar here.