Patient Advocacy Groups File Amicus Brief Supporting Dept. Of Justice In Price Transparency Litigation
PatientRightsAdvocate.org, Independent Women's Law Center, Texas Public Policy Foundation, and Association of Mature American Citizens File Amicus Brief on Behalf of Patients
February 13, 2020 – Giving voice to the majority of Americans who want price transparency in healthcare, several patient advocacy groups today jointly submitted an Amicus Brief to support the Department of Justice's motion for summary judgment in American Hospital Association (AHA), et. al., v. Azar.
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.
PRA is joined on the brief by Independent Women's Law Center, (IWLC), the Texas Public Policy Foundation (TPPF), and the Association of Mature American Citizens (AMAC).
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 note, 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.
“Healthcare remains the only sector of the U.S. economy in which consumers often don’t know how much a service will cost until they receive a bill weeks or months later,” Harris said. “HHS’s commonsense transparency rule falls comfortably within statutory and constitutional limits, and we are optimistic that the Court will uphold this important policy.”
“Rather than spending millions of dollars to block patient access to price information, the hospital lobby should use those resources to create easy-to-access pricing databases to comply with the rule,”said PatientRightsAdvocate.org Founder and Chairman Cynthia A. Fisher. "Once empowered with price discovery, patients and employers will be able to shop for the best quality of care at the lowest possible price. Consumers will then be in control through choice to reduce their costs of care and coverage.”
“Price transparency will foster a competitive, functional marketplace and restore trust and accountability to the healthcare system,” Fisher continued.
According to a Harvard-Harris poll, a bipartisan 88 percent of Americans support government mandates for hospitals and insurance companies to show their prices.
In explaining why IWLC joined in the brief, Jennifer Braceras, director of the organization, said her group believed in constructive, market-based alternatives that put consumers in control.
"Put simply: knowledge is power. This transparency rule will ensure that patients know the price of what they are buying upfront and will allow them to make better choices about their care, creating competitive markets that will drastically reduce costs for consumers, employers, and our government," Braceras added.
TPPF Senior Counsel Robert Henneke also questioned the plaintiffs' argument. "The Court is meant to promote public access to pricing information. Fighting industry secrecy, this rule paves the way for free enterprise in healthcare, bringing it to the standards of every other sector of the economy."
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.
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Ms. Fisher has been an ardent supporter and advocate of the Administration's efforts on price transparency. She is a life sciences entrepreneur, Founder and Chairman of PatientRightsAdvocate.org, and Founder and Former CEO of ViaCord. She is available for interviews on this topic. Please contact press@patientrightsadvocate.org for scheduling and related press inquiries.
Ms. Braceras is Director of Independent Women's Law Center and a former Commissioner on the U.S. Commission on Civil Rights. She is available for interviews and can be reached at press@iwf.org.
Mr. Henneke is General Counsel and Director of the Center for the American Future at the Texas Public Policy Foundation. He previously served as the twice-elected Kerr County Attorney. His commentary has been prolifically published in various national publications and news shows.
Mr. Mangione is Senior Vice President at AMAC Action, the advocacy arm of AMAC. AMAC represents more than 2 million members and stands for fiscal responsibility.
Mr. Harris serves as a partner at Consovoy McCarthy PLLC and has extensive experience litigating before the U.S. Supreme Court in major civil rights cases. He has also litigated numerous high-profile cases in the federal courts of appeals, federal and state trial courts, administrative agencies, and arbitral tribunals. Mr. Harris is available for interviews on the topic and can be reached at jeff@consovoymccarthy.com.