New Administration Continues Focus on Accountability and Transparency in Healthcare
Footnotes for this article are available at the end of this page. |
Blockbuster health insurers continue to face scrutiny from the new administration amid an unprecedented shift toward eliminating fraud, waste, and abuse from the healthcare industry.1 Under Executive Order 14221, titled “Making America Healthy Again by Empowering Patients With Clear, Accurate, and Actionable Healthcare Pricing Information,”2 the administration mandated agency action by May 25, 2025, to ensure enforcement of the Transparency in Coverage (“TiC”) Final Rule.3 Additionally, recent federal action against health insurers has continued to increase, with new developments in the ongoing case In re MultiPlan Health Insurance Provider Litigation (“MultiPlan”),4 additional lawsuits filed by the Department of Justice (“DOJ”) against Medicare Advantage (“MA”) insurers, and lawmakers speaking out against MA fraud.
The court in MultiPlan recently denied defendants’ motions to dismiss federal and state antitrust and consumer protection claims. The decision came shortly after the DOJ filed its Statement of Interest asserting its position that insurance competitors’ coordination to determine prices using a common algorithm may constitute illegal concerted action under Section 1 of the Sherman Act5,6. The DOJ also asserted that the court’s decision represents a significant milestone for providers that have been subject to gamesmanship by large insurers that collude to deny payments.7 The case may pave the way for subsequent litigation against large insurers depending on the information revealed in the discovery.
On May 1, 2025, the DOJ filed a sweeping intervenor lawsuit against Aetna, Humana, and Elevance Health, as well as several major insurance brokerage firms, alleging that the insurers paid kickbacks to the brokers over a five-year period in order to steer MA plan enrollment for their own benefit, while at the same time discriminating against beneficiaries with disabilities.8 The allegations in United States ex rel. Shea v. eHealth, et al. further state that the broker defendants constructed teams of salespeople to exclusively promote MA plans, while the insurers threatened to withhold kickbacks for brokers who enrolled disabled beneficiaries into their programs.9
The case continues a trend of DOJ intervention under the False Claims Act (“FCA”) in cases involving MA insurers — and lawmakers are weighing in as well. Just last month, AGG filed an amici curiae brief in United States of America v. UnitedHealth Group, Inc. et al, an FCA case where the DOJ intervened. AGG filed its supporting brief on behalf of 29 members of Congress led by U.S. Rep. Pramila Jayapal, encouraging the court to reject the special master’s recommendation to dispose of the case — which involved UnitedHealth’s alleged fraudulent coding practices that enriched United at the expense of the American taxpayers and the elderly.10
While the DOJ vows to continue aggressively prosecuting healthcare insurers that prioritize “profit and greed over beneficiary interest,”11 it remains to be seen what federal action under the TiC Final Rule will look like or whether the new administration will attempt to further invigorate enforcement and rulemaking under the Consolidated Appropriations Act of 2021 (”CAA”). Based on its current movement and stated intentions, it is likely that the administration will continue to look for ways to weed out fraud, waste, and abuse in its efforts to improve price transparency and accountability in healthcare, especially with respect to commercial health insurance companies.
[1] See AGG’s recent publication, Health Insurers Under Fire: New Administration Cracks Down on Evasive Pricing Practices, available here.
[2] Executive Order 14221, Making America Healthy Again by Empowering Patients With Clear, Accurate, and Actionable Healthcare Pricing Information (Feb. 25, 2025), available here.
[3] See 45 C.F.R. § 147.212, Transparency in Coverage Final Rule, available here; see also, Centers for Medicare & Medicaid Services, Transparency in Coverage Final Rule Fact Sheet (CMS-9915-F), available here.
[4] The case involves allegations that the Defendants used Multiplan software coordinate their decisions to deny reimbursements to providers and set rates for out-of-network services.
[5] 15 U.S.C. § 1.
[6] DOJ’s Statement of Interest, Dkt. No 382 at 5-6.
[7] Id. at 7.
[8] See Complaint, United States ex rel. Shea v. eHealth, et al., No. 21-cv-11777 (May 1, 2025), available here; see also DOJ Press Release, The United States Files False Claims Act Complaint Against Three National Health Insurance Companies and Three Brokers Alleging Unlawful Kickbacks and Discrimination Against Disabled Americans (May 1, 2025), available here.
[9] Id.
[10] See AGG Files Amicus Brief on Behalf of 29 Congress Members in UnitedHealth Medicare Advantage Fraud Case (May 27, 2025), available here.
[11] DOJ Press Release, The United States Files False Claims Act Complaint Against Three National Health Insurance Companies and Three Brokers Alleging Unlawful Kickbacks and Discrimination Against Disabled Americans (May 1, 2025), available here.
- Kelley C. Chandler
Associate