Legal Insights and Perspectives for the Healthcare Industry

Two OIG inspection reports detailing the results of onsite hospice surveys during a five-year period ending three years ago in 2016 build on the body of hospice industry evaluations conducted by the OIG, garnering significant negative press attention. Many in the hospice industry believe the OIG reports lack balance and focus excessively on the negative findings associated with a small minority of hospices. In light of CMS’s concurrent initiative to put “patients over paperwork” and reduce regulatory burdens on providers, OIG’s call for enhanced regulatory oversight and expanded reporting requirements for hospice may strike some industry watchers as out of step with the administration’s efforts to reduce unnecessary red tape, but OIG sticks to its watchdog role.

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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.