Cigna + Oscar has issued a formal statement concerning the upcoming requirement for health plans to submit gag clause attestations by December 31, 2023.
The Consolidated Appropriations Act, 2021 (CAA) had, under its Section 201, prohibited the inclusion of gag clauses in contracts between providers and health plans. These gag clauses could potentially restrict access to provider-specific cost and quality data for enrollees, plan sponsors, or referring providers. The Centers for Medicare & Medicaid Services (CMS) issued a FAQ on February 23, 2023, regarding the submission of compliance attestations in relation to this prohibition. It has stipulated the first attestation to be due by the end of 2023, and annually thereafter.
The CMS FAQ introduced an optional provision allowing health plans to utilize a third-party entity for attestation submission on their behalf. Cigna Healthcare, in its recent communication, affirms its position against the use of gag clauses. They do not incorporate into their provider contracts any clauses that would impede the disclosure of information as specified by Section 201 of the CAA. Cigna has made it clear that any non-compliant language, if identified, will be promptly excised from their contracts.
In response to the updated guidance on gag clause attestation, Cigna Healthcare has evaluated the provision of third-party attestations. Their assessment has led to two key determinations:
For fully insured group businesses, Cigna will submit the attestation on its own, and this will be considered to satisfy the requirements for both the plan (clients) and the issuer (Cigna).
For self-funded/ASO business, Cigna's submission on its own behalf will cover only direct provider contracts and contracts between Cigna and its clients. Thus, ASO clients need to provide their own attestations to fully represent all their contracts.
Cigna further explains that they will not be submitting attestations on behalf of their clients because CMS has simplified the self-attestation process through a web form. While Cigna’s attestation will satisfy the requirements for their fully insured clients, self-funded clients may have contracts with other entities. These clients will need to consider these additional contracts in their attestations, and Cigna may not have access to this information due to confidentiality provisions.
Cigna advises ASO clients to access the attestation form on the CMS website and submit it before the December 31, 2023 deadline. The same form will be available annually for their compliance requirements.
For further clarification and official information from Cigna, brokers can access their official statement and flyer.
Please keep in mind that the CMS website is fully operational, and clients need to request access for the attestor to submit the attestation before the designated deadline.