February 11, 2025

The Departments of Health and Human Services (HHS), Treasury, and the Office of Personnel Management (OPM) recently issued FAQs About Consolidated Appropriations Act, 2021 Implementation Part 69, providing additional guidance on enforcement of provisions from the No Surprises Act. The FAQs clarify how plans and issuers should navigate ongoing compliance obligations, including updates to the independent dispute resolution (IDR) process following recent litigation and details on required gag clause attestations.

Surprise Billing and IDR Guidance

The guidance is particularly relevant in light of the recent Fifth Circuit ruling in Texas Medical Association v. HHS (TMA III), which affirmed parts of a lower court’s decision impacting the methodology for Qualifying Payment Amount (QPA) calculations and other NSA provisions. With regulatory uncertainty following the ruling, these FAQs provide temporary enforcement discretion for plans and issuers using prior QPA methodologies.

The agencies now clarify that, until August 1, 2025, plans and issuers may continue using prior QPA methodologies (from 2021 and 2023) when determining cost-sharing amounts and issuing related disclosures. The Departments will not penalize plans for using a good faith, reasonable interpretation of applicable rules while they work to update QPA methodologies.

Under the No Surprises Act, plans and issuers must disclose QPA information with initial payments or denial of payment notices sent to nonparticipating providers. The agencies emphasize that plans must certify that the disclosed QPA was calculated in compliance with applicable regulations, even if enforcement discretion applies. The FAQ clarifies that, if disclosures are sent separately from an electronic payment or denial notice, they must be transmitted “on or near” the date of the initial communication and no later than 30 days after receiving the claim information necessary to make a determination.

The FAQs address cases in which providers receive required QPA disclosures after the initial payment or denial notice. If this occurs, the 30-day period for initiating open negotiation does not start until the provider has received both the payment/denial and the necessary disclosures. However, providers may still initiate negotiations earlier if they choose.

In the FAQ, the agencies also reaffirm that cost-sharing amounts for participants cannot be recalculated based on the outcome of an IDR decision. Once an IDR payment determination is issued, participant cost-sharing obligations must remain based on the original QPA calculation and cannot be adjusted. This clarification responds to reports of some plans allegedly attempting to retroactively increase cost-sharing obligations following an IDR ruling.

Gag Clause Attestation Requirements and Clarifications

The second major focus of the FAQs concerns compliance with the Gag Clause Prohibition, a provision of the No Surprises Act which prohibits contracts that restrict plan sponsors from accessing and sharing claims data. Plans and issuers must annually submit an attestation of compliance with these requirements to the Departments. Because 2023 was the first year these attestations were collected, this recent FAQ provides clarification in response to many questions and concerns the agencies received about the attestation and prohibition generally.

FAQ Part 69 clarifies that third-party administrators (TPAs) and other service providers cannot enter into agreements that indirectly prevent plans from complying with the Gag Clause Prohibition. The guidance specifically addresses concerns about “downstream contracts” where a plan’s direct contract with a TPA or network owner may not contain a gag clause, but separate agreements between the TPA and other entities (such as network providers, pharmacy benefit managers, or claims administrators) impose restrictions that ultimately limit the plan’s access to data. The Departments make clear that these types of indirect limitations are still considered gag clauses and would violate the prohibition.

The FAQs explicitly prohibit agreements that restrict plans from sharing de-identified claims data with business associates. If a contract allows a provider, network, or TPA to control whether such data is shared, it violates the Gag Clause Prohibition. The agencies provide specific examples of contractual restrictions that violate the Gag Clause Prohibition, including:

• Limiting the number of claims a plan may access.
• Restricting claims access to audits only.
• Requiring plans to review claims exclusively at a TPA’s physical location.

The guidance also states that plans must submit their annual gag clause attestation even if they are aware that their contracts contain prohibited clauses. If a plan cannot remove a non-compliant provision, it must disclose this issue in its attestation and document good faith efforts to correct the problem. The agencies note that such disclosures will be considered in enforcement actions, but failure to submit an attestation altogether would be treated as noncompliance.

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Resource Coverage Expansion Payment & Delivery Reform