Providers Seek to Stop Hospital Price Transparency Enforcement

December 29, 2020 - Provider groups are calling on the court to prevent hospital price transparency enforcement in the 11th hour, citing the ongoing COVID-19 pandemic.

The American Hospital Association, Association of American Medical Colleges, Federation of American Hospitals, and the National Association of Children’s Hospitals, along with two provider organizations submitted the emergency stay of enforcement motion just before the holidays.

The stay calls for a temporary pause to audits and fines stemming from the hospital price transparency rule so providers can focus on COVID-19 response efforts as they expect numbers to surge again after the holidays.

The rule requires each hospital operating in the US to make public a list of its pricing information, including the prices they negotiate with private payers, by January 1, 2021. The information also must be in machine-readable and in a consumer-friendly format.

CMS issued a bulletin earlier this month stating it will audit a sample of hospitals for compliance with the rule starting in January. Hospitals could get fined up to $300 per day if the agency finds its pricing list is not up to snuff with the rule’s requirements.

In response to the bulletin, the provider groups are saying these enforcement actions “will force overburdened hospitals to divert resources that hospitals desperately need to respond to the surge of COVID-19 cases,” which could jeopardize the rollout of COVID-19 vaccines.

“Absent intervention from this Court, hospitals will be forced to devote staff time to complying with the rule that is now spent expanding bed capacity, planning for the vaccine rollout, and satisfying virus reporting obligations. Whatever the public’s interest in hospital price transparency, it pales in comparison to the immediate public interest in an effective coronavirus response,” the groups explain.

The Trump administration is pushing back against the motion, contending that hospitals have had enough time to prepare for compliance with the hospital price transparency rule, which was finalized and released in November 2019.

A lawsuit challenging the rule has already been thrown out by the US District Country for the District of Columbia.

The federal judge in the case ruled that the hospital price transparency requirements would further HHS’ “interest of informing patients about the cost of care, which will in turn advance its other interest — bringing down the cost of health care.”

But the American Hospital Association (AHA) and several other provider groups continue to fight the rule, which they consider an overreach of HHS’ statutory authority. However, an appellate court has yet to reach a decision on the groups’ appeal of the district court’s decision.

The AHA has also recently sent a letter to the incoming Biden-Harris administration urging it to “exercise enforcement discretion” with hospital price transparency compliance while it considers whether to overturn the requirement that hospitals publish privately negotiated rates.

“[W]e continue to believe that the requirements related to the rates that commercial health insurers negotiate with hospitals is anticompetitive,” the group stated in the letter.

“Worse still, those rates will not be useful to consumers, but rather, will confuse and frustrate them. Whichever way that issue is resolved in consultation with your Administration, now is not the time to heap these requirements on hospitals that need to keep their focus and resources devoted to caring for patients and administering vaccines,” the letter continued.

President-elect Joe Biden has not publicly stated whether he supports the hospital price transparency rule as it stands, but the rule has garnered wide-spread support from both Democrats and Republicans.

Enforcing price transparency on both the provider and payer sides is likely to be a top priority for the incoming administration since it aligns with Biden’s goal of providing affordable care, according to industry experts.