In an unusual action, health insurance giant Humana’s government arm, Humana Government Business (also known as Humana Military), has filed suit against the agency responsible for the operation of Tricare in an attempt to protect what the company deems proprietary and trade secret information. The suit, dubbed a “reverse freedom of information act” (FOIA) suit, was filed earlier this week and seeks to prevent the Defense Health Agency (DHA) from releasing certain information related to Humana’s $45 billion contract with DHA for its administration of Tricare in the nation’s eastern region.

Humana is one of three insurance contractors that administer Tricare around the world, with Humana’s piece of the pie covering the eastern region of the United States where it serves nearly 6 million beneficiaries across 29 states and the District of Columbia. Under its 5-year managed care contract, Humana establishes provider networks, manages a referral system between military and civilian health care providers and facilities, and processes claims, among other administrative tasks.

According to the suit, Humana claims that during the bid process that ultimately led to its contract with DHA Tricare management in the eastern U.S., the company offered “technical enhancements” that went above and beyond the minimum contract requirements and standards in order to set itself apart from other bidders. Initially, DHA agreed to redact this information from required public disclosures under FOIA’s Exemption 4, which covers trade secrets and other privileged or confidential company information. By April 2018, however, DHA changed its position on the agreed redactions and indicated to Humana that it would in fact be releasing the “technical enhancement” information to the public.

Despite several attempts to convince DHA to return to its earlier position and protect the information, the parties were unable to come to agreement, leading Humana to file suit. In its complaint, Humana claims that the release of the information violates both the Administrative Procedure Act and the Trade Secrets Act.

The FisherBroyles Pharmacy and Health Care Law team is pleased to keep you updated on events of interest to those in the healthcare and pharmaceutical industries. Questions regarding the subject matter of this alert may be directed to any of the following attorneys:

Brian Dickerson, FisherBroyles Partner
Brian E. Dickerson
brian.dickerson@fisherbroyles.com
202.570.0248

Anthony Calamunci, FisherBroyles Partner
Anthony Calamunci
Anthony.calaunci@fisherbroyles.com
419.376.1776

Nicole Waid, FisherBroyles Partner
Nicole Hughes Waid
nicole.waid@fisherbroyles.com
202.906.9572

Amy Butler, FisherBroyles Partner
Amy Butler
amy.butler@fisherbroyles.com
419.340.8466