There have been two recent lawsuits brought to challenge portions of the health insurance price transparency rules promulgated under the Trump Administration, one of which was recently withdrawn. These rules are supposed to go into effect in stages, but the eventual goal is to have pricing information of items and services covered by health insurance companies available to the public.

 

In both legal challenges, groups are suing the Department of Health and Human Services (HHS). The first lawsuit was brought by the Chamber of Commerce. Chamber of Commerce of the United States of America et al v. United States Department of Health and Human Services et al, 6:21CV00309. The Chamber was challenging the section of the rule that requires insurers to post internal pricing data, including the “historical net prices” of prescription drugs, in three machine-readable files on a website. The Chamber was arguing that this provision of the rule was unlawful because it violated notice-and-comment rulemaking as well as went beyond the statutory authority of HHS in the Affordable Care Act.

 

The Affordable Care Act requires disclosures that are made to the public to be made in “plain language.” The Chamber argued that this pricing data is highly technical and could not be understood by the average consumer. Finally, the Chamber was arguing that the disclosure of prices would lead to increase cost to patients as it reduced competition among insurers.

 

Since the Biden administration delayed enforcement of provisions of the rule that were the basis of the lawsuit, the suit was withdrawn on August 25, 2021. The Chamber has said that they are going to watch the development of the rules to decide whether to refile the suit.

The second lawsuit was brought by The Pharmaceutical Care Management Association (PCMA). Pharmaceutical Care Management Association v. United States Department of Health and Human Services et al, 1:21-cv-02161. The basis of the PCMA lawsuit is very similar to the Chamber lawsuit. The PCMA is challenging the posting of historical net prices of prescription drugs on the basis that it is unlawful and would result in increased costs to patients.

A similar lawsuit in a DC federal appeals court saw the upholding of a similar rule. This rule required hospitals to disclose the negotiated rates between hospitals and insurance companies. The American Hospital Association challenged the rule on the basis that it went beyond the statutory authority in the ACA. I believe that this means that a court could decide the PMCA lawsuit the same way – by upholding the rule as not going beyond the statutory authority of the ACA.

 

In my opinion, if the enforcement of these rules moves forward, health insurance companies might attempt to lobby Congress to change these rules under the Congressional Review Act to protect the disclosure of their negotiated rates. I do not think that these rules exceed beyond the statutory authority of HHS in the ACA because the goal is to eventually have the information be easily searchable and understandable by the average consumer. I think that the transparency of negotiations as well as the eventual pricing of services and goods would be important for consumers and I believe that as consumers of health insurance, we deserve to have more transparency into health insurance pricing generally.