The Departments of Labor, Health and Human Services, and Treasury have released their 69th set of FAQs, providing clarifications on the Gag Clause Prohibition and the No Surprises Act. These updates impact employer-sponsored group health plans, particularly regarding transparency requirements and compliance obligations.
Gag Clause Prohibition Overview
Under the Consolidated Appropriations Act, 2021 (CAA), group health plans and insurers cannot enter into contracts that restrict access to critical healthcare cost and quality information. Specifically, plans and carriers cannot:
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- Prevent participants, sponsors, or referring providers from accessing provider-specific cost or quality data.
- Restrict electronic access to de-identified claims and encounter data upon request.
- Limit the sharing of such data with business associates, in compliance with privacy regulations.
Key Clarifications from the FAQs
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- Downstream Contract Restrictions: If a plan’s third-party administrator (TPA) has contracts with provider networks, those contracts cannot contain gag clauses that restrict data access.
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- Provider Discretion on Data Sharing: Plans cannot have agreements that condition data disclosure on provider or network entity approval.
- Electronic Data Access: Restrictions on the frequency, scope, or purpose of accessing de-identified claims data are considered prohibited gag clauses.
- Compliance Reporting: If a plan identifies a prohibited gag clause in an agreement it cannot modify, it must report the noncompliance in its annual attestation, detailing efforts to rectify the issue.
No Surprises Act Updates
The FAQs also address ongoing litigation regarding the No Surprises Act, particularly regarding the calculation of Qualifying Payment Amounts (QPAs):
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- Plans and insurers must use a good-faith, reasonable interpretation of the QPA rules while litigation continues.
- Disclosure requirements regarding QPAs for out-of-network services remain in effect.
- The agencies will exercise enforcement discretion for plans that continue using pre-2025 methodologies for QPA calculations until August 1, 2025.
Employer Considerations
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- Review contracts with TPAs and provider networks to ensure compliance with gag clause prohibitions.
- Ensure full data access to provider cost, quality, and claims data as required.
- Submit the annual gag clause attestation by December 31, even if noncompliance exists.
- Monitor QPA developments and adjust payment dispute processes accordingly.