Lackluster start for price transparency

MANY HOSPITALS are breaking new federal rules that seek to make public the prices they negotiate with insurers. But even among those hospitals that post their payer-negotiated rates, such information is often difficult to find, unclear and nearly impossible for the vast majority of consumers to understand or use effectively, experts said.

The regulation took effect on Jan. 1 and mandates that hospitals publish a machine-readable file online containing their payer-negotiated rates. It also requires them to make available a consumer-friendly display of at least 300 shoppable services, including 70 specified by CMS. Hospitals don't need to post a list of shoppable services if they allow consumers to use a price estimator tool to calculate their out-of-pocket costs for all shoppable services.

The Trump administration originally unveiled the plan in June 2019, saying it would improve consumer choice, increase provider competition and lower costs. Hospitals rebuffed those claims, arguing it would allow insurers to conspire with each other to fix prices.

There's mixed evidence about whether price transparency initiatives lower healthcare spending significantly, making the long-term impact of the new rules uncertain.

Hospitals successfully beat back CMS' effort to roll out the new rule last January, delaying it for a year while they sued to block it. A federal appeals court in late December rejected the hospital industry's arguments, though, and the new rule took hold.

The American Hospital Association has said it is weighing its legal options, which could include asking the full D.C. Circuit to review the ruling or appealing to the Supreme Court.

“The most significant thing is the judges actually came down on the side of wanting consumers to be well-informed rather than ill-informed," said Cynthia Fisher, founder and chair of Patient Rights Advocate, a nonpartisan group that advocates for price transparency in healthcare.

Experts are unimpressed by hospitals' latest price transparency moves, mainly because providers seem to have made little to no effort to make the information consumer-friendly. Providers

often bury price information deep in their websites' bowels, forcing prospective patients to fill out lengthy forms for estimates or wade through unintelligible data files for rate information. Hospitals argue CMS needs to provide them with more explicit guidance, so they know what to do and how to do it. Experts largely agree.

But insiders say hospitals' apparent struggle to deliver on price transparency has a lot to do with their reluctance to disclose their rates, adding that most hospital websites aren't consumer-friendly, so they aren't surprised. “If you really want people to get to it, you don't make them dig,” Goodwin Procter partner Delphine O'Rourke said.

Regardless, data about payer-negotiated rates, especially those on machine-readable files and spreadsheets on shoppable services, are not expected to be a draw among consumers, according to experts. They expect third-party data aggregators and app developers, competing providers, insurers, analysts and researchers to use it instead.

Consumers are far more likely to take advantage of price estimation tools, which come with challenges too, namely that they don't include provider fees, medications, medical equipment or homecare services. That's mostly because physicians code after a procedure based on work done and materials used. For example, anesthesia costs for a procedure could double if a surgeon expects it to take an hour, but it takes two hours because hospitals bill anesthesia based on time.

“There's still such a disconnect between how a hospital or health system thinks about a service and the way a patient thinks about it or even defines it,” said Fred Bentley, managing director for consultancy Avalere Health. “What consumers want to know, in the end, is what is it going to cost me?”

The AHA, in a Jan. 8 letter, asked HHS not to enforce the new rule, claiming hospitals were having trouble meeting the requirements because of rising COVID-19 cases and “the need to distribute multiple vaccines. … Meeting both of these challenges requires many of the same personnel who are needed to comply with the rule,” the letter said.

Some hospitals had trouble preparing for the price transparency regulations because vendors didn't want to develop specific products and services until CMS offered clearer guidance, and AHA's lawsuit wrapped up. Likewise, hospitals didn't want to invest considerable time and resources to implement changes for rules that could change or never take effect. Vendors finally began to roll out solutions to help hospitals comply with the new requirements following the Trump administration's district court win over the summer. Many hospitals have been playing catch up since then.

New York-based Northwell Health failed to meet the Jan. 1 deadline to comply, not having made public the rates it negotiates with insurers as of Jan. 7. Rich Miller, its chief business strategy officer, said the organization is “actively working to comply with the current requirement.” He claimed the hospital could not meet the deadline because creating a machine-readable file of negotiated rates is “a complex process” for the 19-hospital system, especially during the COVID-19 pandemic. “The number of data points (are) in the range of about 200 million,” Miller said.

Many experts aren't buying hospitals' excuses. While smaller hospitals often face significant financial and staffing constraints, even well-resourced hospitals and health systems have dropped the ball on price transparency.

“Hospitals have opposed this from the get-go. I don't think they should be facing implementation challenges,” Health Care Cost Institute CEO Niall Brennan said. “These are large, multimillion, and, in many cases, multibillion-dollar corporations with very sophisticated financial accounting departments. There are ways to extract the information. The hospitals that are already complying have proven that it's not that difficult to extract and post that information.”

Experts agree President-elect Joe Biden's administration will enforce the rules, but it could take a while for CMS to step up enforcement because the rule's many gray areas could make it challenging to make hospitals comply, and Biden's team will need hospitals' support in fighting the pandemic.

“This is not where they want to burn their political capital and potentially alienate a critical constituency,” Avalere's Bentley said.

CMS doesn't have a lot of enforcement tools in this case. The agency can fine hospitals $300 per day if they don't follow the rules, but experts said it probably wouldn't have much effect. “Given that the penalty for non-compliance is so trivial, the fact that some hospitals are complying suggests they don't think the transparency hurts their negotiating leverage, or that the transparency was going to happen anyway in a year or two when the insurer-facing transparency rule takes effect (assuming the Biden administration doesn't scrap it),” Loren Adler, associate director of the USC-Brookings Schaeffer Initiative for

● Health Policy, said in an email.