Tougher Enforcement of Hospital Transparency Rule Gets Bipartisan Support

The bipartisan leadership of a key House committee is urging the Biden administration to crack down on hospitals that are not posting their privately negotiated prices as required by a Trump-era rule, signaling Democratic support for preserving the former administration’s health care transparency policies.

In a letter to Health and Human Services Secretary Xavier Becerra, Energy and Commerce Committee Chair Frank Pallone (D-NJ) and Ranking Member Cathy McMorris Rodgers (R-WA) asked HHS to step up enforcement of the rule and consider tougher penalties for noncompliance. Leaders of the Committee’s Subcommittee on Health -- Chair Anna Eshoo (D-CA), and Ranking Member Brett Guthrie (R-KY) -- also signed the letter.

“We are concerned about troubling reports of some hospitals either acting slowly to comply with the requirements of the final rule, or not taking any action to date to comply,” the bipartisan committee leaders wrote. 

The Trump-era hospital price transparency rule took effect on January 1, 2021, and requires hospitals to make public a machine-readable file containing a list of all the standard charges for all items and services, and to display charges for the hospital’s 300 most shoppable services in a consumer-friendly format. Under the rule, hospitals are required to make public the gross charges, the discount cash price, the payer-specific negotiated charges, and the de-identified minimum and maximum negotiated charges for all items and services. 

A recent Health Affairs study of hospital compliance found 65 of the nation’s 100 largest hospitals were “unambiguously non-compliant” between late January 2021 to early February 2021 and eighteen percent of those hospitals either did not post any files or provided links to databases that were not downloadable.

The committee leaders also voiced concern that some hospitals disclosing their listed prices are making it difficult for consumers and plans to access the price information. The Wall Street Journal reported that some hospitals that have published their standard charges have blocked the information from appearing on search engines with special coding embedded on their websites. According to other reports, some hospitals have made the information inaccessible to consumers by burying the price information in their websites and requiring multiple clicks through layers of webpages in order to access the list of charges.

“Given the widespread non-compliance by hospitals, we urge HHS to revisit its enforcement tools, including the amount of the civil penalty, and to conduct regular audits of hospitals for compliance,” the lawmakers concluded.

As the Biden administration works to reverse many of the actions of its predecessor, it has yet to indicate whether it will retain the Trump-era hospital rule or the final “transparency-in-coverage” rule that applies to group plans beginning in 2022. Strong support for the hospital rule by key congressional Democrats, however, bodes well for the survival of both. 

Moreover, a completely new set of transparency requirements enacted in December with large bipartisan majorities in the Consolidated Appropriations Act adds to and overlaps with the Trump-era rules. Guidance from the agencies on the interplay of these requirements is coming but the timing is uncertain. In the meantime, employers and insurers have a long to-do list in preparing for the transparency-in-coverage rules that require disclosure of extensive price and cost-sharing information before the 2022 plan year.

Geoff Manville
by Geoff Manville

Partner, Mercer’s Law & Policy Group

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