For those of us who have been advocating for clarifications to the Gag Clause Prohibition, 2025 started off with a bang!
Some Quick Background on the Gag Clause Prohibition
If you have been following my blog posts throughout 2023 and 2024, you have heard me talk at length about the Gag Clause Prohibition (What Health Care Policy Might Look Like After the Election, Lawsuit Shines a Light on Health Plan Fiduciaries and Their Fiduciary Obligations and Data Sharing, PBM Reforms and Transparency are recent posts.)
And, you have heard me argue that Congress and/or the Biden Administration should clarify certain aspects of the Gag Clause Prohibition to resolve an ongoing battle between (1) self-insured health plan sponsors and (2) owners of the provider networks over whether these provider network owners are required to share the plan’s health claims data with the plan sponsor and the plan’s business associates.
Here's how I explained this ongoing battle:
- Despite the existence of the Gag Clause Prohibition (which has been in effect since 2021), owners of the provider networks (i.e., insurance carriers that “rent” their provider networks to self-insured health plans) continue to refuse to the share a complete and accurate set of health claims data with the plan sponsor and the plan’s business associates. Here, the insurance carriers contend that their agreements with participating providers (i.e., “downstream” agreements) take priority over any agreement between the plan and the carrier, thereby sidestepping the application of the Gag Clause Prohibition.
- In other cases, a self-insured health plan enters into an agreement with an independent TPA under which the TPA then separately contracts with the owner of a provider network (i.e., an insurance carrier) to “rent” this network for the TPA’s plan-customer. Here, the carrier refuses to share claims data with the TPA and/or restricts the TPA from sharing any claims data with the plan sponsor and the plan’s business associates. Again, the carrier contends that their “lease agreement” with the TPA (i.e., a “downstream” agreement) – which happens to prohibit any data-sharing – takes priority over any other agreement, and thus they argue, the Gag Clause Prohibition does not apply.
Here's what I suggested the Biden Administration could do to resolve this battle:
The Department of Labor (DOL) can fix this problem by issuing clarifying guidance explicitly stating that “downstream” agreements that restrict the sharing of a complete and accurate set of health claims data violates the Gag Clause Prohibition, and thus, the owners of the provider networks must share the health claims data with the plan sponsor and the plan’s business associate.
How Did 2025 Start Off with a Bang?
Much to our surprise (because no one was expecting this), the Biden Administration finally heeded our calls and in the waning days of the Administration’s ability to affect policy (January 14, to be exact), the DOL made some helpful clarifications to the Gag Clause Prohibition. These helpful clarifications came in the form of Frequently Asked Questions (FAQs), providing that:
- NO “downstream” agreements can restrict the sharing of de-identified health claims data with the plan sponsor and the plan’s business associates.
- Owners of the provider networks cannot impose conditions on sharing de-identified health claims data with the plan’s business associates. For example, only allowing the data to be shared “at the discretion” of the provider network owner or other conditions like requiring the business associate to prove their “security or financial fitness” all violate the Gag Clause Prohibition.
- Audit rights to access a complete and accurate set of de-identified health claims data cannot be limited in any agreements. More specifically, the FAQs explain that any limitation on the scope, scale, or frequency of electronic access to de-identified claims data is considered to be a restriction that violates the Gag Clause Prohibition.
- Even in cases where a plan sponsor knows that a prohibited gag clause exists (in, for example, a “downstream” agreement), the DOL still wants the plan sponsor to submit their Gag Clause Prohibition attestation with the Department, and as part of the attestation, the plan sponsor can now inform the DOL that the sponsor is actually not compliant. More specifically, in the attestation webform, the sponsor can now (1) explain that the owner of the provider network has refused to eliminate a prohibited gag clause(s), (2) tell the DOL the name of the uncooperative provider network owner, and (3) inform the DOL of the steps the sponsor has taken to try to be compliant with the law.
What’s Next?
The start of 2025 also marks the start of a new Congress (that began on January 3) and new Administration (that began on January 20). Advocates of improving and strengthening the Gag Clause Prohibition (including me) are optimistic that Congress and the Trump Administration will continue to build on the Biden Administration’s actions here.
More to this point: The January 14 FAQs signaled that the DOL is poised to undertake enforcement actions against owners of the provider networks if they continue to refuse to share the data. Such enforcement actions may become a priority for the incoming DOL Secretary, Lori Chavez-DeRemer, who is already on record demanding that plan sponsors/business associates must have access to the plan’s health claims data. For example, as a member of the House of Representatives, Lori Chavez-DeRemer sponsored legislation that would prohibit restrictions on sharing de-identified health claims data for audit purposes.
In addition to my optimism that the DOL will further clarify – and enforce – the Gag Clause Prohibition, I am cautiously optimistic that these FAQs will convince owners of the provider networks that they must share the data. Plan sponsors and business associates should consider using this guidance as evidence that confirms that the law is clear: Insurance carriers can no longer restrict the data.
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