Letter to Hon. Chiquita Brooks-LaSure, Administrator at Centers for Medicare and Medicaid Services - Senators Braun and Hassan call for enforcement of hospital price transparency rule in letter to CMS

Letter

Dear Administrator Brooks-LaSure:
We write today to call for robust enforcement of key health care price transparency
requirements, and to applaud your recent efforts to enhance compliance with such requirements
by increasing civil monetary penalties for noncompliance. There is no doubt the health care
system is broken, and that the American people deserve better. We appreciate your prompt
attention to this matter and stand ready to assist the Centers for Medicare & Medicaid Services
(CMS) and its staff.
On September 24, 2020, President Trump issued an Executive Order that was designed to
make health care pricing more transparent and accessible to the American people, support
competition, and empower consumers to make informed and value-conscious decisions ("Price
Transparency Rule").
1 The rule requires hospitals to provide the rates for 300 common services
and the amount they are willing to accept in cash in a digital, consumer-friendly database. The
Trump administration issued and subsequently finalized the Price Transparency Rule in
November 2020, marking a significant step toward achieving full transparency in the health care
market. In December 2020, the U.S. Court of Appeals for the D.C. Circuit issued a 2-0 decision
upholding the Trump Administration's Price Transparency Rule, affirming that hospitals must
comply with the requirements of the final rule to publicly disclose their standard charges.2
However, work remains to be done to ensure hospitals fully adopt and are held accountable to
the provisions within the rule.3
Under the Price Transparency Rule, hospitals were required to disclose their standard
charges the day the final rule took effect on January 1, 2021, providing hospitals with time to
collect and publish the standard charge information.4 CMS is responsible for evaluating and enforcing hospital compliance with the requirements prescribed in the rule.5
It is our
understanding that if CMS finds that a hospital failed to disclose its standard charges by January
1, 2021, CMS may take action to, in no required order, issue a warning notice to the hospital,
request a corrective action plan, impose a civil monetary payment of $300 per day until rule
requirements are met, and name the noncompliant hospitals publicly on CMS's website.6
A study published on March 16, 2021 examining the price transparency of the 100
highest-revenue hospitals in the United States concluded that 65 of those 100 hospitals were noncompliant with the Price Transparency Rule.
7 Of these 65, 12 did not provide files or links to
searchable databases. Furthermore, 53 of the 65 non-compliant hospitals did not include payerspecific negotiated rates or were non-compliant in other ways.8
Even "compliance" under the current definition has not resulted in adequate tools for patient
price shopping. Hospitals deemed compliant have engaged in practices that do not meet the
rule's intent, including providing incomplete information, implementing burdensome access
restrictions, utilizing code to block prices from being displayed on search engines, and creating
tools to obfuscate access to mobile app developers or patients. Nearly every hospital evaluated
for compliance in one study buried their cost sheets deep within their websites.9 The hospitals
engaging in these practices should not be considered compliant with the law, as even savvy
patients would struggle to navigate these intentionally complex systems.
It is clear that the current $300 per day civil monetary penalty threshold was not sufficient to
hold hospitals accountable for complying with the transparency agreements. For that reason, we
commend CMS's recent proposal to increase the civil monetary threshold for noncompliant
hospitals.
10 In the interim, we write to inquire about the results of CMS's current oversight
efforts of non-compliant hospitals to ensure that Americans have access to the most transparent
and up-to-date prices.
We respectfully request that you provide to us no later than 5 p.m. on Monday, October 4th
,
2021, the following information:
1. The number of hospitals currently subject to the Price Transparency Rule;
2. Of these hospitals subject to the rule:
a. The number of hospitals that have received warning letters and/or correction
action plans (CAP) from CMS for non-compliance (preferably by state)
b. The number of responses CMS received from non-compliant hospitals (preferably
by state), and a description sufficient to help Congress understand either the
improvement that is underway, or the work that remains to be done;
c. The number of hospitals that have been issued a civil monetary penalty by CMS;
3. A description of how CMS is auditing compliance with warning letters and/or CAPs;
4. The date by which CMS expects to issue its first civil monetary penalty for noncompliance;
5. A description of how CMS informs Congress and the American people about which
hospitals are fully compliant (or not) with efforts to increase transparency of health care
pricing.
Thank you again for your attention to this important matter. We look forward to working
with CMS and its staff to ensure full compliance with this important rule.

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