2025 ACA Updates: Guidance Issued on Gag Clause Prohibitions and QPA Calculations
On January 14, 2025, the Departments of Labor, Health and Human Services and the Treasury released ACA FAQs Part 69, in which they provided guidance on the Gag Clause Prohibition and attestation compliance, extended enforcement relief on qualifying payment amount (“QPA”) calculation requirements until August 2025 and provided clarification on complying with QPA methodology rules under the No Surprises Act.
Gag Clause Prohibition and Attestation Guidance
Under the Consolidated Appropriations Act (“CAA”), group health plans and health insurance issuers are prohibited from entering into an agreement with a health care provider, network or association of providers, third-party administrator (“TPA”) or other third party offering access to a network that would directly or indirectly restrict the plan or issuer from (1) making provider specific cost or quality of care information available to eligible participants, beneficiaries, and enrollees of the plan; (2) electronically accessing de-identified claims and encounter information upon request; and (3) sharing such information as described above with a business associate.
Under this “Gag Clause Prohibition” regulation, plans and issuers must submit an attestation of compliance annually, knows as the Gag Clause Prohibition Compliance Attestation (“GCPCA”).
The January 2025 FAQs provided new guidance on GCPCA compliance:
Downstream Agreements must comply with GCPCA. If any of the plan’s contracted third-parties also separately contract with another entity to provide or administer the plan’s network, then this “downstream” agreement must also meet Gag Clause Prohibition requirements.
Restrictions on Access to De-Identified Claims Info. The Departments clarify that agreements subject to Gag Clause Prohibition requirements may not restrict de-identified claims and encounter data from being shared between the plan and a business associate. The FAQs provided specific examples of prohibited restrictions on access to de-identified claims data.
Self-Reporting of Non-Compliance. Plans who are aware of agreements that violate gag clause prohibition requirements must report the non-compliant provisions during the annual attestation submission by identifying it in the “Additional Information” section. An attestation that includes reported non-compliance will still satisfy the annual attestation requirement, and the Departments will give good faith effort consideration to any self-reported noncompliance in reviewing for possible enforcement action.
Federal IDR Process and QPA Calculation Guidance
The No Surprises Act (“NSA”) includes provisions establishing an Independent Dispute Resolution (“IDR”) process for resolving disputes between plans or issuers and providers or facilities over out-of-network rates. The guidance provided methodology for calculating a qualifying payment amount (“QPA”) to determine the patient’s cost-share. However, after the provisions on QPA methodology were challenged in the Fifth Circuit Court and litigation lead to three variations of QPA methodology rules, the Departments delayed enforcement, allowing IDR parties to rely on either the original 2021 NSA methodology or a good-faith interpretation of the Fifth Circuit Court’s revised 2023 methodology. Per the January FAQs, the Departments extended the enforcement relief on QPA calculations for all claims prior to August 1, 2025.
The FAQs also clarified the following:
Plans and issuers must still meet disclosure requirements and include notice of the QPA calculation methodology with the initial notice of denial or payment. The notice should reference whether the calculation relied on the 2021 methodology or the 2023 methodology
The 30-day open-negotiation period doesn’t begin until the provider receives both the initial notice of payment or denial and the required disclosures regarding QPA methodology.
A provider who never receives required disclosures related to the QPA is not precluded from initiating open negotiation or requesting an extension to IDR.
The patient’s cost sharing may not be recalculated or increased after an IDR payment determination has been made.
Although Plan Sponsors are ultimately responsible for compliance with regulatory guidance, our Company has a dedicated compliance team that works hard to assist our clients with their compliance needs; whether it is to coordinate with other plan sponsor vendors (e.g. 5500s) or performing the service on the clients’ behalf, we are here to help (e.g. RxDC reporting and Gag Clause Attestation filings).
In addition, we assist our clients with the regulatory mailings and filings, state and federal tax filings, such as 1099MISC, 1099NEC, 1099R, 1042s, W2s, 1095B, and with state mandated reporting, such as vaccination assessments, claims surcharges, and eligibility reporting.
Compliance Mailings/Filings – No Specific Due Date:
HEALTH PLANS
Annual HIPAA Notice of Availability of Notice of Privacy Practices
Annual Women’s Health & Cancer Rights Act Notice
Quarterly (as assigned) Medicare Secondary Payor Reporting (Section 111)
