

A new lawsuit claims HHS isn't living up to its own transparency standards for health insurance filings. (AP Photo/Alex Brandon)

The Department of Health and Human Services is improperly hiding health insurers' requested rate increases from the public -- in violation of the Affordable Care Act, according to a new lawsuit from a former administration health official.

States are generally charged with reviewing health insurers' proposed rate increases, but HHS conducts reviews for several states that don't have an effective review program. HHS hasn't lived up to its obligation to make the rate filings available before they take effect so the public has a chance to comment on them, according to the lawsuit.

With six weeks until the next enrollment period opens, the department still hasn't made any of the filings for 2015 health plans public, according to the lawsuit from Mehri & Skalet attorney Jay Angoff, who used to oversee ACA implementation for HHS. The lawsuit claims that HHS hasn't made any of the filings public in past years either as required by the department's own regulations.

This is particularly problematic, Angoff said, in states have taken a hands-off approach to regulating Obamacare within their borders, such as Texas and Oklahoma. But some other states have lax rate review programs and would benefit from the disclosure from the federal government, he said.

"Allowing the public to see not just the rate itself but the justification, the assumption companies make on which the rate is based, is something that can only have a pro-competitive effect in the market," said Angoff, also a former insurance regulator in Missouri. "The only way those rates are likely to come down is if the rate filing justifications are made public."

The new lawsuit, filed on behalf of a Missouri consumer advocacy group, comes after HHS didn't promptly respond to an Aug. 20 Freedom of Information Act request to disclose the rate filings. It also comes after HHS ignored an April plea from dozens of national and state consumer organizations to make the rate filing information public.

"In many states the insurer's justification for the rates it proposes are unavailable to the public, making it difficult, if not impossible, for consumer groups to challenge proposed health insurance rates increases," the groups wrote at the time.

HHS spokesman Ben Wakana said in an e-mail late Wednesday that “we are readying the rate change information. The Department is committed to providing consumers accurate information so they can make informed decisions, and therefore, before the beginning of Open Enrollment, the agency will publish final insurance rates for all 50 states.”

The 2010 health-care law appropriated $250 million over a five-year period for states to beef up their rate review programs. The heightened review process saved consumers a combined $1 billion in 2013, HHS claimed in a report issued last week.

Plenty of states running their own rate review programs post their information online and allow the public to provide comment. So why does Angoff, the former administration official, think HHS hasn't done the same?

"I don't know," he said. "Our view is legally they have an obligation to. I would also think that — this is not relevant to the legal issue — but politically, it would also make sense because ... when you make rate filing information public, that is going to be more likely to lead to lower rates. Which is obviously good for the administration."