Resolution asks attorney general to investigate alleged anticompetitive pricing by hospitals and drug makers

The committee heard testimony on House Resolution 14, which urges the New Hampshire attorney general to investigate whether anticompetitive practices by health systems and pharmaceutical manufacturers are driving up prices and harming consumers.

Representative Don McFarland, the prime sponsor, framed the resolution as a fairness measure that asks the attorney general to examine pricing practices, contracting and other arrangements that can lead to opaque or widely variable charges for the same medical services and medicines. McFarland cited two U.S. Supreme Court decisions he said support enforcement against exclusionary pricing: Group Life and Health Insurance Company v. Royal Drug Company and Arizona v. Maricopa County.

“Patients are charged wildly different prices for the same procedure,” McFarland told the committee, and he said the state should press the issue through the attorney general’s office. He said he had discussed the topic with the attorney general, who expressed interest but did not commit to a course of action during his conversations with the sponsor.

Members questioned both the legal basis and the likely costs of an investigation. Representative Weber asked why the measure was a resolution rather than a bill; McFarland said he had originally planned statutory language but did not have a version vetted by legislative counsel that he considered viable, so he offered a resolution as a first step and said the attorney general has existing authority to investigate antitrust concerns. Representative McLean asked whether other states have pursued similar inquiries; McFarland said enforcement has been limited despite the legal precedent and suggested stronger action was warranted.

Committee members also raised policy alternatives. Representative Woods suggested a different systemic approach to address pricing if the committee prefers non-market models; McFarland said he favored competitive markets but argued hospitals’ practices were falling outside lawful competitive conduct and cited antitrust statutes including the Sherman Act and the McCarran-Ferguson Act in his testimony.

Questions included: whether an investigation would require new funding for the attorney general’s office; on what legal grounds the office could open inquiries absent clear evidence of fraud; and whether the insurance department might be a more appropriate place for some inquiries because insurers negotiate different rates. McFarland replied that the attorney general’s office already investigates consumer-protection and antitrust issues and that an investigation would evaluate whether there is a legal basis to act.

Where things stand: the committee took testimony and closed the public hearing. Sponsor said he may pursue a bill in future sessions; the resolution asks the attorney general to review evidence and report as appropriate.