Chamber of Commerce Sues HHS Over Transparency Rule


August 12, 2021 9:07 am

The U.S. Chamber of Commerce sued HHS and other agencies in Texas federal court to stop their implementation of a new insurance price transparency provision finalized in the waning days of the Trump administration.

The Health and Human Services Department and others exceeded their statutory authority by adopting a provision that allegedly will cost over $3.5 billionin its first year and hundreds of millions of dollars every year thereafter, the group said in a complaint filed in the U.S. District Court for the Eastern District of Texas.

The requirement that health insurers post internal and proprietary data on a website in a “machine-readable” format also is arbitrary and capricious, the group says. The chamber represents the interests of businesses and professional organizations throughout the country. The Tyler Area Chamber of Commerce, of Tyler, Texas, also is a plaintiff in the suit.

The agencies adopted the rule to implement sections of the Affordable Care Act that set out disclosure requirements for health plans offered on ACA health insurance exchanges and the Public Health Act that extend those disclosure requirements to off-exchange plans.

The chamber doesn’t object to the rule’s first provision, which requires insurers to disclose cost-sharing information such as co-pays and deductibles for covered items and services.

But the second provision, which requires plans and issuers to gather and publicly disclose a “Negotiated Rate File” and an “Allowed Amounts File” in two regularly updated machine-readable files, is unlawful, it says. The negotiated rate file is to contain in-network rates negotiated with providers. The allowed amounts file is to contain “historical” allowed out-of-network rates.

The agencies later added a third file, the “Prescription Drug File,” requiring disclosure of historical net prices for drugs, the complaint says.

The ACA requires all price disclosures to be in plain language readily understandable by its intended audience, the complaint says. Machine-readable files aren’t designed to be read, understood, and used by ordinary people, it says.

The rule itself notes that machine-readable files may be difficult for consumers to navigate, the complaint says. “That is the opposite of a simple, plain-language disclosure requirement” Congress envisioned, it says.

The historical net price requirement exceeds HHS’s statutory authority because it isn’t listed among the law’s required disclosures and has “little in common” with them, Tuesday’s complaint says.

The Centers for Medicare and Medicaid Services, the Departments of Labor and Treasury, the Employee Benefits Security Administration, the Internal Revenue Service, and the current heads of those agencies also are defendants in the suit.

Causes of Action: Administrative Procedure Act.

Relief: Declaratory judgment that the rules are unlawful, an order vacating the provisions, and injunctive relief prohibiting the agencies from enforcing the rule, costs and attorneys’ fees.

Response: HHS doesn’t comment on pending litigation as a matter of policy.

Attorneys: King & Spalding LLP, U.S. Chamber of Commerce Litigation Center, and Potter Minton PC represent the chamber.

The case is U.S. Chamber of Com. v. U.S. Dep’t of Health & Human Servs., E.D. Tex., No. 21-cv-309, complaint filed 8/10/21.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at