What do ducks on a pond and a hospital dealing with the government’s new price transparency regulations have in common? Each may be setting itself up for trouble.
CMS made clear that the rule should be taken seriously. On a December 8, 2020 conference call to review the rule’s compliance requirements, presentation documents stated that there will be no hardship waivers or exceptions. Full compliance was expected immediately on January 1st, 2021. Further warning that: “A common strategy that hospitals and their vendors have pursued to comply with the rule would not satisfy its requirements,” without detailing the strategy itself.
On December 29, 2020, an appeals court for the District of Columbia rejected assertions against compliance made by the AHA, 40 state hospital associations, and others. American Hospital Association, et al v Azar.
A non-partisan would consider the implementation of this rule a necessity, particularly given the bipartisan support for its implementation.
More recently, on the 18th of March, Xavier Becerra was confirmed to lead the Department of Health and Human Services. During his confirmation hearing, he was asked about the price transparency rule. His response was: “…what I can say to you is we will do robust enforcement to make sure price transparency is there for all Americans because for far too long, people have never had any idea what they’re going to pay when they walk into the hospital.”
Finally, on March 22, the Wall Street Journal ran an expose’ Hospitals Hide Pricing Data from Search Results. Certain Hospitals were discovered to be using blocking code which prevents pricing data from being digitally searched.
In speaking with different groups in the market, a wide variety of responses and perspectives have emerged:
If they fine us, we’ll sue them….
This is based on a failed argument that disclosing negotiated prices with third-party payors is a violation of the 1st Amendment rights of the participants through forced speech. See the court decision above.
We’re going to wait and see what everyone else does…
Not exactly transparent leadership in consumerism. Other than the mistrust created between the hospital and community when hospitals fail to adhere to the rules, there’s the added reputational risk of suffering through a CMS audit and being found to be deficient or worse “willfully non-compliant”. And then, there are the fines.
Our vendor put together the solution, I’m sure it’s fine…
Based on our research, what’s being used as compliant data production of the requisite information, is often not. Ultimately the responsibility will fall to the hospital itself.
Get out of the water
Hospitals need to comply with these regulations, consumers require it, CMS demands it. Hospital administrators may want to enlist a third-party consultant to audit and prepare a report on compliance, develop a gap assessment, and determine the best steps to remove themselves from the shooting gallery. Even ducks know when to protect themselves.