At the heart of the case is a disagreement over whether the Department of Health and Human Services (HHS) overstepped its authority when it issued a regulation last November that would compel hospitals and other health providers to disclose their cash and negotiated contract prices to patients in a clear, easy-to-access format. The AHA and a cohort of hospitals sued to block the requirement, which was set to go into effect January 2021.
PatientRightsAdvocate.org (PRA) led the coalition of transparency supporters in filing the brief, which was prepared and filed by counsel Jeffrey Harris, a partner with Consovoy McCarthy PLLC, in Arlington, Virginia.
In addition to AMAC, PRA is joined on the brief by Independent Women's Law Center, (IWLC), and the Texas Public Policy Foundation (TPPF).
Amici argue that many American workers have high-deductible plans, which make negotiated prices part of their “out of pocket” costs and rebut AHA claims that forcing disclosure violates the parties’ First Amendment rights. As amici notes, hospitals and insurance companies routinely disclose prices in their explanation of benefits statements. Their rates are not secret, just revealed after it’s too late for patients to choose more cost-effective care.
According to a Harvard-Harris poll, a bipartisan 88 percent of Americans support government mandates for hospitals and insurance companies to show their prices.
“America’s seniors are among the most vulnerable,” said AMAC Action Senior Vice President Andrew Mangione. “Although those over age 65 make up only 15 percent of the population they account for more than a third of health care spending. Opaque prices can be especially devastating to them. We hope to extend these transparency rules beyond hospitals to include prescription drug prices as well.”
The AHA and a consortium of other hospital groups filed suit against HHS in December 2019 to stop the Trump Administration's price transparency rule requiring hospitals to disclose their negotiated rates and cash prices.
The hospital lobby maintains that HHS exceeded its statutory authority under the Administrative Procedure Act and violated the First Amendment by mandating speech in a manner that fails to directly advance a substantial government interest.
However, no court has ever invoked the First Amendment to invalidate government efforts to provide truthful, accurate information to consumers about marketplace transactions. Furthermore, as the Amicus Brief argues, the Supreme Court has emphasized that “[s]o long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions.”
If the Court sides with the amici and grants HHS's motion for summary judgment, the case will be dismissed, and the rule will stand. The Court is expected to hand down a decision in the coming weeks.