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Center for the Study of Servs. v. United States Dept. of Health and Human Services

United States District Court, D. Columbia.

July 1, 2015

CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants

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          For CENTER FOR THE STUDY OF SERVICES, ALSO DBA CONSUMERS' CHECKBOOK, Plaintiff: Paige M. Jennings, Caroline Montrose Brown, COVINGTON & BURLING LLP, Washington, DC.

         For 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.

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         MEMORANDUM OPINION

         Gladys Kessler, United States District Judge.

         Plaintiff 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.

         On 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

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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].[1]

         Upon 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 hereby denied.

         I. BACKGROUND

         A. FOIA

         FOIA 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).

         When an 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 omitted).

         B. FFM Data Submission Process

         Under 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].

         Insurers 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 Submission Window.

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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.

         Once 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 changes. Id.

         For the 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.

         September 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.[2]

         On 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.

         In 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 ¶ 9.

         Insurers 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].[3] The 2016 CCIIO Letter sets forth a data review process for the 2016 plan

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year similar to the one described above for the 2015 plan year.

         C. Factual Background

         Plaintiff 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.

         On 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.

         On 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.

         On 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.

         On May 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 information. Id.

         On June 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].

         On June 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].

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On August 26, 2014, Plaintiff requested an administrative appeal. Pl.'s SMF at ¶ 18-20.

         On 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.

         On 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.

         On 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.

         On 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.

         On May 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.

         II. STANDARD OF REVIEW

         Summary 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.'" Steele v. Schafer,535 ...


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