United States District Court, D. Columbia.
CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK, Plaintiff,
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants
CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS'
CHECKBOOK, Plaintiff: Paige M. Jennings, Caroline Montrose
Brown, COVINGTON & BURLING LLP, Washington, DC.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
CENTERS FOR MEDICARE AND MEDICAID SERVICES, Defendants:
Benton Gregory Peterson, LEAD ATTORNEY, U.S. ATTORNEY'S
OFFICE, Civil Division, Washington, DC.
Kessler, United States District Judge.
Center for the Study of Services (" Plaintiff" or
" CSS" ), which is also known as "
Consumers' CHECKBOOK," brings this action against
Defendants the U.S. Department of Health and Human Services
(" HHS" ) and the Centers for Medicare and Medicaid
Services (" CMS" ) (collectively, "
Defendants" or " the Government" ) under the
Freedom of Information Act (" FOIA" ), 5 U.S.C.
§ 552. Plaintiff seeks certain information related to
health plans offered pursuant to the Patient Protection and
Affordable Care Act (" ACA" ), Pub. L. No. 111-148,
124 Stat. 119 (2010). The Government has withheld the
requested information under FOIA Exemption 4, which exempts
from disclosure " trade secrets and commercial or
financial information obtained from a person and privileged
or confidential." 5 U.S.C. § 552(b)(4). Plaintiff
initially asked this Court to enjoin Defendants from
withholding health plan benefits data for the 2014 plan year,
which the Government subsequently released. Plaintiff has
since requested substantially similar data for the 2015 and
2016 plan years and asks the Court to permanently enjoin
Defendants from failing to disclose this type of information
in future years.
October 31, 2014, Plaintiff filed its Motion for Summary
Judgment (" Pl.'s Mot." ) [Dkt. No. 28]. On
December 15, 2014, the Government filed a Combined
Cross-Motion for Summary Judgment and Opposition to
Plaintiff's Motion for Summary
Judgment (" Gov't's Mot." ) [Dkt. No. 32].
On December 30, 2014, Plaintiff filed its Combined Opposition
to Defendants' Cross-Motion for Summary Judgment and
Reply in Support of Plaintiff's Motion for Summary
Judgment (" Pl.'s Opp'n" ) [Dkt. No. 36].
Finally, on January 20, 2015, the Government filed its Reply
in Support of Its Motion for Summary Judgment ("
Gov't's Reply" ) [Dkt. No. 40].
consideration of the Motions, Oppositions, Replies, the
entire record herein, and for the reasons stated below,
Plaintiff's Motion for Summary Judgment is hereby denied,
and the Government's Motion for Summary Judgement is
allows individuals to request the disclosure of records from
government agencies. § 552(a) (3). The Act is " a
means for citizens to know what their Government is up
to." Nat'l Archives & Records Admin. v.
Favish, 541 U.S. 157, 171, 124 S.Ct. 1570, 158 L.Ed.2d
319 (2004) (internal citations and quotation marks omitted).
FOIA thus " creates a liberal disclosure requirement,
limited only by specific exemptions which are to be narrowly
construed." Bristol-Myers Co. v. F.T.C., 424
F.2d 935, 938, 138 U.S. App.D.C. 22 (D.C. Cir. 1970).
agency receives a request that " reasonably
describes" the records sought, § 552(a) (3) (A), it
must " conduct  a search reasonably calculated to
uncover all relevant documents." Morley v. CIA,
508 F.3d 1108, 1114, 378 U.S. App.D.C. 411 (D.C. Cir. 2007)
(internal quotation marks omitted). The agency must then
disclose any responsive agency records it locates, except to
the extent that any such records are protected from
disclosure by one of FOIA's nine statutory exemptions.
See 5 U.S.C. § 552(b). If an agency withholds responsive
records not covered by one of FOIA's exemptions, the
requester may, after exhausting administrative remedies, file
a lawsuit in district court to challenge the agency's
decision to withhold. See id. § 552(a)(4)(B). "
Under FOIA, an agency has the burden to demonstrate that the
withheld documents are exempt from disclosure, which it may
meet by submitting affidavits that show, with reasonable
specificity, why the documents fall within the exemption. The
affidavits will not suffice if the agency's claims are
conclusory, merely reciting statutory standards, or if they
are too vague or sweeping." Biles v. Dep't of
Health & Human Servs., 931 F.Supp.2d 211, 223 (D.D.C.
2013) (internal quotation marks, citation, and brackets
FFM Data Submission Process
the ACA, individuals and families may purchase health care
insurance plans during the annual Open Enrollment Period
through on-line marketplaces called " exchanges,"
which are operated by the federal or state governments. The
exchange created by the federal government -- the
Federally-Facilitated Marketplace (" FFM" ) -- is
administered by CMS and its Center for Consumer Information
and Insurance Oversight (" CCIIO" ). See
Plaintiff's Statement of Material Facts at ¶ 3
(" Pl.'s SMF" ) [Dkt. No. 28-2].
who choose to offer Qualified Health Plans (" QHPs"
) through the FFM must submit plan benefits information to
CMS each year during the Initial FFM QHP Application
See CCIIO, 2015 Letter to Issuers in the
Federally-facilitated Marketplaces (Mar. 14, 2014) ("
2015 CCIIO Letter" ) [Dkt. No. 28-7]. Insurers in 36
states offered QHPs through the FFM for the 2015 plan year.
Pl.'s SMF at ¶ 4.
the Government has received insurers' QHP data for an
upcoming plan year, it begins a lengthy, multi-step review
process that may result in a number of changes to the
initially-submitted data. 2015 CCIIO Letter at 6-11. "
CCIIO reviews the data to ensure it meets federal regulatory
requirements and will display correctly on HealthCare.gov
[the FFM's website]." Gov't's Mot. at 7. For
plans offered in certain states, state officials work in
concert with the federal Government to review and approve
submitted QHP data. 2015 CCIIO Letter at 9-10; Pl.'s SMF
at ¶ 4. Insurers are limited in the changes they may
make to submitted QHP data during the submission cycle.
Id. at 10. In the final stages of review, CMS (and
if relevant, the state involved) must approve any proposed
2015 plan year, CMS required insurers to submit their initial
QHP applications by June 27, 2014. Id. at 8, 10.
After June 27, 2014, insurers could not change their proposed
service areas or add new insurance plans but were otherwise
permitted by CCIIO to amend their data. Gov't's
Statement of Material Facts at ¶ 14 ("
Gov't's SMF" ) [Dkt. No. 32-1]. Following the
initial data submission, CMS completed two rounds of review
which ended about August 25, 2014. 2015 CCIIO Letter at 10.
4, 2014, marked the deadline to submit " final" QHP
application data and the beginning of the Limited Data
Correction Window. Id. After the September 4th
deadline, insurers were permitted to make changes only with
" pre-approv[al] by CMS and [if relevant for the
particular state] the state." Id.
October 6, 2014, the Limited Data Correction Window closed,
further restraining the scope of permissible amendments to
QHP data. Gov't's SMF at ¶ 14. Although limited
in terms of plan amendments, insurers remained free to
withdraw QHPs they had planned to offer, and at least some
insurers did so. Gov't's SMF at ¶ 11.
October 2014, the Government provided insurers with final
certifications of their ability to participate in the FFM.
Pl.'s SMF at ¶ 32. Insurers were then required to
sign FFM agreements before the beginning of the Open
Enrollment Period on November 15, 2015. Gov't's SMF
at ¶ 8-9. The Government does not consider " [d]ata
related to plan offerings [to be] final until agreement
signing and plan confirmation [which occurs] approximately
two weeks prior to [O]pen [E]nrollment." Id. at
planning to offer QHPs through the FFM for the 2016 plan year
were required to submit plan benefits data by May 15, 2015.
See CCIIO, FINAL 2016 Letter to Issuers in the
Federally-facilitated Marketplaces (" 2016 CCIIO
Letter" ), at 7 (Feb. 20, 2015), [Dkt. No.
42-2]. The 2016 CCIIO Letter sets forth a
data review process for the 2016 plan
year similar to the one described above for the 2015 plan
CSS is a non-profit 501(c) (3) corporation located in
Washington, D.C. whose mission includes conducting and
supporting studies of consumer services (including those
provided by government programs) and publishing materials to
educate and inform consumers about such services. Pl.'s
Compl. at ¶ 10 [Dkt. No. 1]. It seeks certain
information about the QHPs that insurers will offer on the
FFM in order to create an online tool to help consumers
compare health plans. Id. If Plaintiff's tool is
to serve its purpose of assisting consumers in the selection
of health plans, Plaintiff must obtain health plan benefits
data each year substantially before the beginning of the Open
Enrollment Period. Id. at ¶ 5.
November 29, 2013, pursuant to FOIA, Plaintiff submitted a
request for health plan benefits data provided to CMS by all
insurers planning to offer QHPs through the FFM for plan year
2014. Pl.'s SMF ¶ 6. Specifically, Plaintiff's
letter requested the " complete set of insurance
carrier-submitted facts on the benefits (deductibles,
coinsurance rates, copayment amounts, out-of-pocket limits,
etc.) offered by each Federally-Facilitated
Exchange/Marketplace-eligible plan [QHP] [delivered in
particular template formats]." Letter from Robert
Krughoff, President, Consumers' CHECKBOOK, to Freedom of
Information Officer, Ctrs. for Medicare & Medicaid Servs.
(Nov. 29, 2013) at 1 [Dkt. No. 11-4]. Noting the
time-sensitive nature of its request, Plaintiff asked CMS for
" a very quick response." Id. at 2.
December 2, 2013, CMS granted Plaintiff's request for
expedited processing but did not release the requested 2014
data or set a production schedule. Pl.'s SMF at ¶ 7.
March 24, 2014, nearly four months after submitting its
request, Plaintiff filed its Complaint challenging the
Government's failure to produce the requested
information. Among other things, the Complaint asks this
Court to " [p]ermanently enjoin Defendants from refusing
to disclose or delaying the disclosure of substantially the
same information sought for future plan years [.] "
Pl.'s Compl. at ¶ D.
2, 2014, Plaintiff filed a Motion for Preliminary Injunction
[Dkt. No. 11]. On May 20, 2014, the Court denied
Plaintiff's Motion, holding that Plaintiff failed to
establish that it or the public would suffer an irreparable
injury from the Government's failure to produce the
requested data. Memorandum Opinion and Order [Dkt. No. 17].
The Court also ordered Defendants to file a detailed, written
Status Report concerning production of the requested
25, 2014, the Government filed its Status Report, stating
that it would provide Plaintiff with the 2014 plan year data
before July 1, 2014 [Dkt. No. 20]. However, the Government
did not complete production of the data identified in
Plaintiff's initial FOIA request until August 28, 2014.
Joint Status Report [Dkt. No. 27].
30, 2014, Plaintiff submitted a second FOIA request, which
called for 2015 plan year data substantially similar to the
2014 plan year data that were the subject of the first
request. Letter from Robert Krughoff, President, Ctr. for the
Study of Servs., to Olen Clybourn, Acting Freedom of Info.
Officer, CMS (June 30, 2014) [Dkt. No. 28-4]. On July 30,
2014, CMS denied Plaintiff's second FOIA request,
invoking FOIA Exemptions 4 and 5, § 552(b) (4)-(5).
Letter from Hugh Gilmore, Dir., Div. Freedom of Info., CMS,
to Robert Krughoff, Center for the Study of Servs. (July 30,
2014) [Dkt. No. 28-5].
On August 26, 2014, Plaintiff requested an administrative
appeal. Pl.'s SMF at ¶ 18-20.
September 24, 2014, CMS issued its Appeal Decision, which
upheld the denial of Plaintiff's request. Letter from
Andrew Slavitt, Principal Deputy Adm'r, CMS, to Caroline
M. Brown and Paige M. Jennings, Covington & Burling LLP
(Sept. 24, 2014) (" CMS Appeal Decision" ) [Dkt.
No. 28-7]. CMS overturned its initial reliance on Exemption
5. However, it reaffirmed its finding that the requested data
were exempt from FOIA under Exemption 4 because release would
cause substantial competitive harm to FFM-participating
insurers and would otherwise harm the FFM program.
Id. at 3-4. The Appeal Decision also noted that CMS
would release the requested data once it had been "
finalized" -- just before the beginning of the Open
Enrollment Period on November 15, 2014. Id. at 5.
October 31, 2014, Plaintiff filed the present Motion for
Summary Judgment seeking a " declaration that CMS's
invocation of Exemption 4 to withhold the requested data is
improper, as well as an order that [CMS] produce the
requested 2015 data." Pl.'s Mot. at 2.
November 14, 2014, CMS released the requested 2015 plan
benefits data, and the Open Enrollment Period began the
following day. Gov't's SMF at ¶ 19.
November 24, 2014, pursuant to Executive Order 12,600 and 45
C.F.R. § 5.65(d), Defendants sent a letter to
FFM-participating insurers requesting their views on release
of QHP application information in future years before data
finalization and insurer agreement execution. Id. at
¶ 6. Defendants received letters from 78 insurers
generally objecting to the release of QHP data ("
insurer letters" ). Id. at ¶ 7.
21, 2015, Plaintiff submitted a third FOIA request for the
2016 plan year benefits data. On May 22, 2015, Plaintiff
filed a Status Report [Dkt. No. 42] notifying the Court of
its pending FOIA request for the 2016 data.
STANDARD OF REVIEW
judgment should be granted only if the moving party has shown
that there is no genuine dispute of material fact and that
the moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett,477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);
Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991, 353 U.S.
App.D.C. 205 (D.C. Cir. 2002). " A fact is material if
it 'might affect the outcome of the suit under the
governing law,' and a dispute about a material fact is
genuine 'if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.'"
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