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Legal Insights and Perspectives for the Healthcare Industry

US President Donald Trump issued an executive order on August 3 that aims to expand telehealth access to Medicare beneficiaries beyond the coronavirus (COVID-19) public health emergency (PHE) period. The executive order focuses on rural healthcare providers in particular, noting the difficulties patients in rural areas face in obtaining accessible, high-quality healthcare services over the years. The order contains four specific directives:

  1. The US Department of Health and Human Services (HHS) must create a new 1115A model to test payment mechanisms related to rural healthcare providers.
  2. HHS, the Federal Communications Commission, and the US Department of Agriculture must develop a strategy to improve rural health care through developing healthcare-related infrastructure.
  3. HHS must issue a report regarding existing and planned policy initiatives that enhance various rural healthcare quality metrics, including identifying “regulatory burdens that limit the availability of clinical professionals.”
  4. HHS must propose regulation that would extend the measures taken during the PHE beyond its current duration as to both “the additional telehealth services offered to Medicare beneficiaries” and “the services, reporting, staffing, and supervision flexibilities offered to Medicare providers in rural areas.”

US President Donald Trump issued the Executive Order on Improving Price and Quality Transparency in American Healthcare to Put Patients First on June 24, another in a long line of recent executive and legislative branch efforts to address the issue of healthcare pricing and the apparent “black box” nature of those prices to the average consumer. The prevalence of health savings accounts (HSAs), high-deductible health plans, and narrow insurance networks has exposed the underbelly of healthcare pricing to the American consumer. Disputes among providers and insurers that land in the laps of patients and consumers have reached a fever pitch. The executive order is a response to the call to action regarding healthcare pricing, along with several bills making their way through Congress this year.

The executive order calls for the issuance of a proposed rule by the secretary of the US Department of Health and Human Services (HHS) within 60 days that requires hospitals to publicly post standard charge information, “including charges and information based on negotiated rates and for common or shoppable items and services,” in a user-friendly format. While we are uncertain as to how far the proposed HHS rule is likely to go, what will be included in the categories of “shoppable” items and services, or what the eventual implications for antitrust law will be, the constitutionality of such disclosures is being called into question by some constitutional scholars. For example, noting that hospitals already provide consumers with information on pricing, the American Hospital Association has observed that “publicly posting privately negotiated rates could, in fact, undermine competitive forces of private market dynamics.” The industry will need to look closely at the HHS proposed rule once issued.