Health Reform WK-EDGE Order granting automatic access to health plan data reversed, FOIA request required
Wednesday, November 8, 2017

Order granting automatic access to health plan data reversed, FOIA request required

By Susan L. Smith, J.D. M.A.

HHS successfully appealed the order of the district court requiring CMS to release information on health insurance plans offered on the health insurance marketplace each year, essentially giving the Center for the Study of Services (CSS) "automatic access" to data without requiring CSS to file a Freedom of Information Act (FOIA) (5 U.S.C. §552) request. HHS did not challenge the district court’s determination that Exemption 4 of FOIA, which would permit the agency to withhold the information, was not applicable to the information requested by CSS. The appellate court found that the district court had erred in issuing a permanent "automatic access" injunction and reversed the order granting prospective relief (Center for the Study of Services v. HHS, October 24, 2017, Rogers, J.).

The requested information. Health insurers seeking to offer insurance plans on the health insurance marketplace are required to submit their proposals to CMS by a certain date each year. If CMS finds deficiencies in the data, it sends correction notices to the plans (see Sec. 1311 of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148)). Plans must submit revised plans by a date certain each year. After that, the data is "locked down" for final CMS review. CSS submitted FOIA requests to CMS in 2013, June 2014, and May 2015 for health plan information as soon as the health plan data was submitted to CMS, prior to the lock down and well in advance of open enrollment periods to create a plan comparison tool.

First opinion. Having failed to receive any information, CSS sought a declaration that CMS violated FOIA and requested an injunction against withholding the requested records and a permanent injunction against refusing to disclose or delaying the disclosure of the same information in future plan years. HHS claimed that the information fell under Exemption 4 of FOIA, which permits agencies to withhold trade secrets and commercial or financial information obtained from a person and privileged or confidential. Both parties moved for summary judgment in the case, but the court denied the motions as inappropriate (see Parties chastised for ‘confusing’ factual record in QHP data release caseJuly 8, 2015).

Lower order. On August 16, 2106, the district court changed its determination after noting an "extremely significant" change in CSS’ 2016 FOIA request, where the information requested was released after the "lock down date" rather than as soon as the health plans submitted the data. The district court concluded that CSS would have more than a month to prepare its informational materials before the open enrollment period and the release of the information after the "lock down" date would not cause substantial competitive harm to any insurer. In addition, CSS was not seeking any sensitive data or underlying actuarial or business assumptions. The court found that HHS had violated FOIA by withholding the requested data after the lock down and ordered HHS to release the requested benefit data each year immediately after the lock down.

The case is No.16-5296.

Attorneys: Caroline Brown (Covington & Burling LLP) for Center for the Study of Services. R. Craig Lawrence, U.S. Attorney's Office, for U.S. Department of Health and Human Services.

Companies: Center for the Study of Services; U.S. Department of Health and Human Services

Cases: CaseDecisions AccessNews GCNNews HealthInsuranceExchangeNews ReportingTransparencyNews DistrictofColumbiaNews

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