Pricing Transparency Laws:
President Trump’s Healthcare Legacy
President Trump issued an Executive Order in June 2019 demanding transparent prices in healthcare (source). In November 2019, the Centers for Medicare and Medicaid Services (CMS) issued a final rule requiring hospitals to post clear, accessible pricing information online (Hospital Price Transparency Rule), beginning January 1, 2021. 84 Fed. Red. 65,524 (Nov. 29, 2019). The American Hospital Association filed a lawsuit in December 2019 to keep prices secret and lost on Tuesday, June 23, 2020 (source).
Various federal agencies have stepped up efforts to increase transparency in healthcare. In November 2020, the Internal Revenue Service, Employee Benefits Security Administration, and CMS issued final rules requiring group health plans and health insurers to provide participants (via website or paper form) with cost-sharing information upon request, including an estimate of the individual’s cost-share for items or services provided by a particular provider. 85 Fed. Reg. 72,158 (Nov. 11, 2020). This change takes effect for plan years beginning on or after January 1, 2023.
The final rules also require plans and insurers to disclose in-network provider negotiated rates, historical out-of-network allowed amounts, and drug-pricing information through a website so the public can understand healthcare pricing. This change takes effect for plan years beginning on or after January 1, 2022. In the same vein, the Consolidated Appropriations Act, signed in late December 2020, requires health plans and insurers to provide advance explanations of benefits (EOBs) and online price comparison tools to allow patients to estimate the cost of different items and services. Pub. L. No. 116-260. These changes, which are separate from those discussed in the final rules above, take effect for plan years beginning on or after January 1, 2022.
In July 2021, CMS announced that hospital compliance with the Hospital Price Transparency Rule has been sporadic proposed modifications to the Civil Monetary Penalties (CMP), to take effect January 1, 2022, in order to increase compliance. Unfortunately, many believe that the CMPs are set at a level that are less than what the hospitals have to lose if they are forced to be transparent.
I believe that consumers (both employers and employees) should use the growing momentum towards health pricing transparency as a watershed moment to demand full transparency from all vendors in their health care supply chain, whether they use a bundled (fully-insured or self-funded with a carrier) or unbundled (self-funded without a carrier) approach to structuring their health plan. Not only will transparency provide you with the fiscal oversight of your top three business expense needs, it may help protect you from fiduciary duty claims under ERISA.
New Transparency Law!
No Surprises Act of 2022. Under this law, you cannot be charged more than in-network prices when you unknowingly are subject to an out of network provider or facility.