Sept. 15, 2023
Gag Clause Prohibition Compliance Attestation Approach for 2023
Applies to all groups
Earlier this year, the federal government released guidance 
on the implementation of the Gag Clause Prohibition Compliance Attestation (GCPCA). Under these requirements, both group health plans and health insurance issuers offering group and individual health insurance coverage must submit an attestation of compliance. The first GCPCA reporting is due to the Centers for Medicare & Medicaid Services (CMS) no later than Dec. 31, 2023. In that guidance, CMS added an option, but not a requirement, for third-party administrators or health insurance issuers to attest on behalf of the group health plan.
After reviewing the guidance and additional resources 
provided by CMS, Blue Cross and Blue Shield of Texas (BCBSTX) has determined that we can support our group customers in the following manner:
Fully insured groups: BCBSTX will attest on behalf of fully insured group health plans. As an insurer, BCBSTX is required to annually submit a GCPCA attestation. When the issuer of a fully insured group health plan submits its GCPCA, CMS will consider both the fully insured group health plan and issuer to have satisfied the attestation submission requirement. No further action is required from fully insured groups.
ASO Groups: Due to the nature of self-funded business, ASO group customers will need to submit their own GCPCA attestation. BCBSTX is providing the following confirmation of compliance regarding our medical provider agreements for self-funded group health plans to use to support their own attestations in the CMS portal:
BCBSTX does not standardly enter into any medical provider agreements that would prohibit disclosure of information consistent with Section 201 of the CAA. BCBSTX’s medical provider agreements also include “compliance with law” provisions that would make any non-standard language that could be viewed as non-compliant with the CAA ineffective. BCBSTX is not aware of any prohibited gag clauses, as defined by CAA, in its medical provider agreements at this time. If any such language is identified, it will be removed from the contract.
Frequently Asked Questions
Q. Can you explain what the Gag Clause requirement is and what this reporting pertains to?
A. Generally, Section 201 of the Consolidated Appropriations Act (CAA) prohibits gag clauses in contracts between group health plans and health insurance issuers with third party administrators and health care providers that prevent a group health plan or health insurance issuer from providing certain provider-specific cost and quality data to enrollees and referring providers, as well as accessing certain de-identified claims data. This provision went into effect on December 27, 2020. The first GCPCA reporting attests to compliance since Dec. 27, 2020.
Q. Why is BCBSTX not submitting attestations on behalf of self-funded group health plan customers?
A. After analyzing the GCPCA guidance, we determined the most efficient and accurate approach would be for our ASO group customers to submit their own attestation. BCBSTX does not have all the required group data to complete the attestation. In addition, ASO group customers may have contracts with other third-party administrators, health insurance issuers or providers that are subject to the attestation requirement which BCBSTX would not have access to.
With this communication, self-funded group health plans have the confirmation they need from BCBSTX that is required to make the attestation with respect to your relationship with BCBSTX.
Q. For ASO group customers who also have Prime Therapeutics® as their Pharmacy Benefit Manager (PBM), does this information address attestations for the PBM provider agreements?
A. No, the information above only addresses GCPCA attestation for the BCBSTX medical provider agreements.
Q. Can BCBSTX provide ASO group customers with assistance on their GCPCA attestation?
A. The CMS GCPCA website has several resources available to explain the requirements of this attestation, including instructions, FAQs and a user manual with step-by-step submission instructions. For entities submitting attestation for only one group health plan, CMS has created an easy-to-use web form that ASO group customers can use to complete the attestation requirement.
Questions: If you have any questions, please contact your BCBSTX representative.
Blue Cross and Blue Shield of Texas (BCBSTX) contracts with Prime Therapeutics to provide pharmacy benefit management and related other services. BCBSTX, as well as several independent Blue Cross and Blue Shield Plans, has an ownership interest in Prime Therapeutics. MyPrime.com is an online resource offered by Prime Therapeutics.
