On January 14, 2025, the Departments of Labor, Treasury, and Health and Human Services (collectively, the “Departments”) issued new guidance (i.e., FAQ 69) on two important provisions within the No Surprises Act, which was signed into law on December 27, 2020. The second part provides plans with additional guidance on what constitutes an impermissible “gag” clause.
Gag Clause Prohibition and Attestation
The No Surprises Act also prohibits health plans from entering into agreements that include “gag clauses.” A gag clause is a contractual provision that prevents health care providers and networks from releasing information on health costs due to the data being confidential or proprietary. To ensure compliance, the regulations require plans to file an annual certification with the Department of Health and Human Services indicating that the Plan is not subject to contracts that contain “gag clauses.”
In the recent 2025 FAQ, the departments explained that “a limitation on the scope, scale, or frequency of electronic access to de-identified claims and encounter information or date is considered a [prohibited] restriction.”
The FAQs then listed the following examples of restrictions on an audit or claims review that would be considered impermissible:
- For a “statistically significant” number of de-identified claims;
- Limiting the scope of an audit;
- Unreasonably limiting the frequency of claims reviews (e.g., no more than once per year);
- Limiting the number and types of de-identified claims that a plan or issuer may access;
- Restricting the data elements of a de-identified claim that a plan can access
- Providing access to de-identified claims data only on the TPA or service provider’s physical premises.
The guidance concluded by noting that the above list is not exhaustive, and the Departments will continue to provide plans with guidance moving forward.
Takeaways
Finally, all plans should have filed their annual attestation with the Department of Health and Human Services for 2024. However, all contracts and agreements with network providers should be reviewed in light of the guidance outlined above. Many agreements restrict audits and reviews to once every twelve-month period, which the Departments indicate is impermissible.