The Dec. 31 Gag Clause Attestation Deadline: Filing Even When Issues Exist

Quick Answer 

Employers must submit their annual gag clause prohibition compliance attestation (GCPCA) online by Dec. 31, even if they already know a prohibited gag clause exists. New federal guidance confirms that employers should still file and use the Additional Information box in Step 3 in the CMS GCPCA webform to explain the issue. There is also now a way to submit gag clause concerns through the No Surprises Act complaint portal, which can support good-faith compliance.

Why This Is Hitting Brokers Right Now

If this feels like another year-end compliance item landing at the worst possible time, you are not alone. Brokers are juggling renewals, ACA reporting questions, and open enrollment clean-up when clients suddenly ask:

• “Do we need detailed claims data to prove compliance?”

• “What if our carrier or TPA will not give us what we are asking for?”

• “Should we wait to file if we think there is a gag clause problem?”

This is exactly where confusion is creeping in, and where brokers can add real value by helping employers understand what is required now, even when everything is not perfect.

What the Gag Clause Attestation Is Really About

Under the Consolidated Appropriations Act, group health plans are prohibited from entering into agreements with carriers or TPAs that restrict:

• Access to de-identified claims data

• Cost and quality information

• Provider-specific cost information

Each year, employers must attest that they have complied with these rules. The attestation is submitted online through CMS, either:

• By the carrier or TPA on the employer’s behalf, or

• Directly by the employer

The deadline is Dec. 31 each year, covering the Attestation Period specified in the CMS GCPCA webform (i.e., the day immediately following the date of the prior attestation and extending to the date of the current attestation).

The Common Roadblock: Claims Data Requests

What we are seeing repeatedly is this scenario:

• The employer understands gag clauses are prohibited

• The employer requests de-identified claims data or requests an independent third party claim audit

• The carrier or TPA response is delayed, limited, or unclear

• The employer worries they cannot truthfully attest without full data

This leads some employers to believe they should hold off on filing.

That is where the new guidance matters.

January 2025 Guidance: File the Attestation Anyway

Federal guidance issued in January 2025 clarified a critical point:

Employers must still submit the gag clause attestation even if they believe a prohibited gag clause exists.

Instead of delaying or skipping the filing, employers should:

• Submit the attestation by Dec. 31

• Use the Additional Information box in Step 3 in the online form

• Clearly explain the concern, limitation, or unresolved issue

This allows the employer to demonstrate good-faith compliance while documenting the problem.

For brokers, this is an important message to reinforce:

Not filing is a bigger risk than filing with an explanation.

A Helpful Option: The No Surprises Act Complaint Portal

BCS has also identified a practical tool many employers are unaware of.

The No Surprises Act complaint portal includes a submission option that allows employers to report concerns related to gag clauses. This provides:

• A formal channel to document access issues

• Additional support that the employer raised the concern

• Evidence of proactive compliance behavior

While this does not replace the attestation, it can complement it when an employer is stuck waiting on a carrier or TPA.

How Brokers Should Guide Employers Right Now

Here is how to keep clients moving forward without creating unnecessary risk.

Broker Action Steps

• Confirm who is submitting the attestation - employer or carrier/TPA

• Do not delay filing past Dec. 31, even if data is incomplete

• Use the Additional Information box in Step 3 to document any known or suspected gag clause issues

• Keep records of data requests made to carriers or TPAs

• Consider submitting a concern through the No Surprises Act complaint portal

• Remind employers that transparency and documentation matter more than perfection

Frequently Asked Questions

Do employers need de-identified claims data in hand before filing?

No. Employers are not required to resolve every data issue before submitting the attestation. They should file on time and explain the issue in the Additional Information box in Step 3.

Should an employer wait if they believe a prohibited gag clause exists?

No. January 2025 guidance makes clear that employers should still submit the attestation and disclose the concern rather than skip or delay filing.

Can carriers or TPAs file on behalf of employers?

Yes. Many carriers and TPAs submit attestations for their clients. Brokers should confirm this in writing and understand what is covered and what is not.

What happens if nothing is submitted by Dec. 31?

Failure to file creates compliance exposure. Even if enforcement details continue to evolve, missing the deadline is a clear risk.

Is the No Surprises Act complaint portal required?

No. It is optional, but it can be a helpful way to document good-faith efforts when gag clause issues arise.

Final Thoughts

This is one of those compliance obligations that looks simple on paper but becomes complicated in real-world administration. Brokers are often the first to hear about delays, confusion, and frustration from employer clients. Watch our quick guide on How to submit your gag clause attestations here.

At BCS, we raise these issues because employers should not feel paralyzed by imperfect information, and brokers should not have to guess how to advise them. Filing on time, documenting concerns clearly, and showing good-faith compliance are still the right steps.

If you or your clients are unsure how to navigate the attestation when issues exist, this is exactly where a compliance partner can help keep things moving without unnecessary risk.