DOL Guidance Clarifies Gag Clause Prohibition Attestation

On January 14, 2025, the Department of Labor (“DOL”) issued long-awaited guidance clarifying the Gag Clause Prohibition, a key provision from the Consolidated Appropriations Act of 2021 (“CAA”). This guidance addresses long-standing issues surrounding data-sharing restrictions by provider network owners, ensuring that self-insured health plans can access critical health claims data.

This development is a major victory for employers, plan sponsors, and their business associates who have struggled to obtain the data needed to manage health plans effectively. Below, we break down the guidance, what it means for you, and the potential impact on the benefits landscape.

What is the Gag Clause Prohibition?

The Gag Clause Prohibition was enacted as part of the CAA to enhance transparency in healthcare. It prohibits health plans, providers, and TPAs from entering into agreements that prevent the disclosure of complete and accurate health claims data to plan sponsors or their business associates.

However, despite this prohibition, many network owners—such as insurance carriers renting their networks to self-insured health plans—have continued to withhold or limit access to claims data by citing “downstream” agreements with providers or TPAs.

What does the new guidance say?

The DOL’s recent guidance provides much-needed clarification, addressing how the prohibition applies to these downstream agreements. Key takeaways include:

• No More Restrictions on Data Sharing: Agreements between insurance carriers and providers or TPAs cannot restrict the sharing of de-identified health claims data with plan sponsors or their business associates. Restrictions requiring carriers’ approval or imposing conditions—such as proving financial or security fitness—are also prohibited.
• Audit Rights Must Be Unrestricted: Plan sponsors must have full audit rights to access a complete and accurate set of de-identified claims data. Any limitation on the scope, scale, or frequency of data access violates the Gag Clause Prohibition.
• Plan Sponsors Can Report Non-Compliance: Even if a prohibited gag clause exists in a downstream agreement, plan sponsors are encouraged to submit an attestation to the DOL. Sponsors can use the attestation form to report non-compliant network owners, explain the issue, and document steps taken to comply with the law.

Why does this matter to employers?

The ability to access health claims data is critical for employers to:

• Evaluate plan performance.
• Assess provider network quality and cost-efficiency.
• Negotiate better rates and services.

This guidance strengthens employers’ rights to access this data and removes barriers imposed by carriers and networks.

What’s Next?

The DOL has signaled it is prepared to take enforcement actions against non-compliant network owners. Employers should be prepared to:

• Leverage the new guidance when requesting claims data from their carriers or networks.
• Work with legal counsel or benefits consultants to ensure compliance with the Gag Clause Prohibition.
• Use the DOL’s attestation process to report non-compliance if needed.

A Step Toward Greater Transparency

This clarification is a significant step toward achieving transparency in healthcare. Employers now have a stronger foundation to demand access to the data they need to effectively manage their health plans.

If you have questions about the Gag Clause Prohibition or need help navigating the new guidance, our team is here to assist. Contact us to learn more about how this update could impact your business.