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CLIENT ALERT: CMS Unveils New Price Transparency Rules

On November 15th, the Trump administration announced historic price transparency requirements to increase competition and lower healthcare costs for all Americans.  In response to President Trump’s Executive Order signed in July 2019, the Department of Health and Human Services took action to advance the Trump administration’s commitment to increasing price transparency in the health care industry and promote public access to hospital standard charges.[1] The announcement focuses on a final rule and a proposed rule.

The final rule requires hospitals to display their secret, negotiated rates to patients starting in January 2021. Hospitals will be required to make public all “standard charges” online in a single data file that can be read by other computers. “Standard charges” include gross charges, payer-specific negotiated charges, the amount the hospital is willing to accept in cash from a patient, and minimum and maximum negotiated charges.[2] Other items and services that must be disclosed include supplies, facility fees, and professional charges for employed physicians and other practitioners. This information and format will be most useful for employers, providers, and tool developers when designing consumer-friendly price transparency tools in the future.

Hospitals also need to make public the standard charges for at least 300 common “shoppable services” and describe this information in plain language. “Shoppable services” include x-rays, outpatient visits, imaging and laboratory tests.[3] This information must be easily accessible, in a searchable format, and be updated annually.[4] The goal of this requirement is to ensure that healthcare consumers can compare services between different hospitals and mitigate cost surprises. [5] Of the 300 shoppable services, the rule specifies 70 services that must be included (see table below for the required 70 services). The other 230 services will be chosen by the hospital. In order to ensure compliance with the final rule, the Centers of Medicare & Medicaid Services (“CMS”) has the authority to impose fines on the hospital up to $300 per day and $109,500 for the entire year. Some critics of the final rule argue this monetary penalty will be an insufficient enforcement tool given the relatively insignificant amount a hospital will be forced to pay.[6] Other enforcement tools include monitoring hospital compliance, evaluating complaints made by individuals and entities sent to CMS, and auditing hospital websites.[7]

The second rule discussed in the announcement is a proposal that would require insurance companies to show patients their expected out-of-pocket costs instantly through an online tool or in paper form, if requested. If finalized, the Transparency in Coverage proposed rule would also require health insurance companies and group health plans that cover employees to disclose on a public website their negotiated rates for in-network providers and allowed amounts for out-of-network providers.[8] Insurers would need to explain how much a service would cost, the amount an insurance plan would pay, and how much the consumer would owe before the service is rendered.[9] This requirement is intended to promote informed and price-conscious decision making and drive competition in the healthcare industry.[10] The proposed rule is subject to a 60-day public comment period. Comments are due by 5 p.m. on January 14, 2020 and may be submitted online at https://www.regulations.gov/ or by mail to the Centers for Medicare & Medicaid Services.

Summary:

These rules are a historic step toward price transparency across the health care industry and are in furtherance of the Trump administration’s goal of empowering healthcare consumers. The finalized rule and the proposed rule strive to make pricing information more available to healthcare consumers so they can make informed health care decisions. Through price transparency, consumers should expect to see a reduction in healthcare costs in the future. In order to provide hospitals enough time for compliance with the new requirements, the effective date of the finalized rule is January 1, 2021. The comment period for the proposed rule is open until January 14, 2020.

Please contact a BMD healthcare attorney if you have any questions on the new price transparency rule or would like to submit written comments for the proposed rule, if you have any questions on how these rules may affect your practice, or if you have any other healthcare related questions in general. 

TABLE 3—FINAL LIST OF 70 CMS-SPECIFIED SHOPPABLE SERVICES Evaluation & Management Services [11]

2020 CPT/HCPCS Primary Code

Psychotherapy, 30 min

90832

Psychotherapy, 45 min

90834

Psychotherapy, 60 min

90837

Family psychotherapy, not including patient, 50 min

90846

Family psychotherapy, including patient, 50 min

90847

Group psychotherapy

90853

New patient office or other outpatient visit, typically 30 min

99203

New patient office of other outpatient visit, typically 45 min

99204

New patient office of other outpatient visit, typically 60 min

99205

Patient office consultation, typically 40 min

99243

Patient office consultation, typically 60 min

99244

Initial new patient preventive medicine evaluation (18-39 years)

99385

Initial new patient preventive medicine evaluation (40-64 years)

99386

Laboratory & Pathology Services

2020 CPT/HCPCS Primary Code

Basic metabolic panel

80048

Blood test, comprehensive group of blood chemicals

80053

Obstetric blood test panel

80055

Blood test, lipids (cholesterol and triglycerides)

80061

Kidney function panel test

80069

Liver function blood test panel

80076

Manual urinalysis test with examination using microscope

81000 or 81001

Automated urinalysis test

81002 or 81003

PSA (prostate specific antigen)

84153-84154

Blood test, thyroid stimulating hormone (TSH)

84443

Complete blood cell count, with differential white blood cells, automated

85025

Complete blood count, automated

85027

Blood test, clotting time

85610

Coagulation assessment blood test

85730

Radiology Services

2020 CPT/HCPCS Primary Code

CT scan, head or brain, without contrast

70450

MRI scan of brain before and after contrast

70553

X-Ray, lower back, minimum four views

72110

MRI scan of lower spinal canal

72148

CT scan, pelvis, with contrast

72193

MRI scan of leg joint

73721

CT scan of abdomen and pelvis with contrast

74177

Ultrasound of abdomen

76700

Abdominal ultrasound of pregnant uterus (greater or equal to 14 weeks 0 days) single or first fetus

76805

Ultrasound pelvis through vagina

76830

Mammography of one breast

77065

Mammography of both breasts

77066

Mammography, screening, bilateral

77067

Medicine and Surgery Services

2020 CPT/HCPCS/DRG Primary Code

Cardiac valve and other major cardiothoracic procedures with cardiac catheterization with major complications or comorbidities

216

Spinal fusion except cervical without major comorbid conditions or complications (MCC)

460

Major joint replacement or reattachment of lower extremity without major comorbid conditions or complications (MCC).

470

Cervical spinal fusion without comorbid conditions (CC) or major comorbid conditions or complications (MCC).

473

Uterine and adnexa procedures for non-malignancy without comorbid conditions (CC) or major comorbid conditions or complications (MCC)

743

Removal of 1 or more breast growth, open procedure

19120

Shaving of shoulder bone using an endoscope

29826

Removal of one knee cartilage using an endoscope

29881

Removal of tonsils and adenoid glands patient younger than age 12

42820

Diagnostic examination of esophagus, stomach, and/or upper small bowel using an endoscope

43235

Biopsy of the esophagus, stomach, and/or upper small bowel using an endoscope

43239

Diagnostic examination of large bowel using an endoscope

45378

Biopsy of large bowel using an endoscope

45380

Removal of polyps or growths of large bowel using an endoscope

45385

Ultrasound examination of lower large bowel using an endoscope

45391

Removal of gallbladder using an endoscope

47562

Repair of groin hernia patient age 5 years or older

49505

Biopsy of prostate gland

55700

Surgical removal of prostate and surrounding lymph nodes using an endoscope

55866

Routine obstetric care for vaginal delivery, including pre-and post-delivery care

59400

Routine obstetric care for cesarean delivery, including pre-and post-delivery care

59510

Routine obstetric care for vaginal delivery after prior cesarean delivery including pre-and post-delivery care

59610

Injection of substance into spinal canal of lower back or sacrum using imaging guidance

62322-62323

Injections of anesthetic and/or steroid drug into lower or sacral spine nerve root using imaging guidance

64483

Removal of recurring cataract in lens capsule using laser

66821

Removal of cataract with insertion of lens

66984

Electrocardiogram, routine, with interpretation and report

93000

Insertion of catheter into left heart for diagnosis

93452

Sleep study

95810

Physical therapy, therapeutic exercise

97110

 

[1] CMS-1717-F2

[2] U.S. Dept. of Health & Human Serv., Trump Administration Announces Historic Price Transparency Requirements to Increase Competition and Lower Healthcare Costs for All Americans (Nov. 15, 2019), https://www.hhs.gov/about/news/2019/11/15/trump-administration-announces-historic-price-transparency-and-lower-healthcare-costs-for-all-americans.html

[3] Id.

[4] Id.

[5] Id.

[6] Steven Porter, Enforcing Hospital Price Transparency: Is $300 max daily fine big enough? HealthLeaders (Nov. 15, 2019), https://www.healthleadersmedia.com/finance/enforcing-hospital-price-transparency-300-max-daily-fine-big-enough

[7] CY 2020 Hospital Outpatient Prospective Payment System (OPPS) Policy Changes: Hospital Price Transparency Requirements (CMS-1717-F2), Centers for Medicare & Medicaid Services (Nov. 15, 2019), https://www.cms.gov/newsroom/fact-sheets/cy-2020-hospital-outpatient-prospective-payment-system-opps-policy-changes-hospital-price

 [8] U.S. Dept. of Health & Human Serv., Trump Administration Announces Historic Price Transparency Requirements to Increase Competition and Lower Healthcare Costs for All Americans (Nov. 15, 2019), https://www.hhs.gov/about/news/2019/11/15/trump-administration-announces-historic-price-transparency-and-lower-healthcare-costs-for-all-americans.html

[9] Selena Simmons-Duffin, Trump Wants Insurers and Hospitals To Show Real Prices To Patients, NPR (Nov. 15, 2019), https://www.npr.org/sections/health-shots/2019/11/15/779707609/trump-wants-insurers-and-hospitals-to-show-real-prices-to-patients

[10] U.S. Dept. of Health & Human Serv., Trump Administration Announces Historic Price Transparency Requirements to Increase Competition and Lower Healthcare Costs for All Americans (Nov. 15, 2019), https://www.hhs.gov/about/news/2019/11/15/trump-administration-announces-historic-price-transparency-and-lower-healthcare-costs-for-all-americans.html

[11] CMS-1717-F2, https://www.hhs.gov/sites/default/files/cms-1717-f2.pdf

 

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.

FCC Adds $198 Million to Strengthen Telehealth for Rural Healthcare Providers

The Federal Communications Commission (“FCC”) has added an additional $198 million in funding to its Rural Health Care Program. These funds will be used to increase broadband services and telecommunications to bolster telehealth/telemedicine services for rural healthcare providers. Funding for rural healthcare providers was initially capped at $605 million in 2020, but the added funds will now allow the FCC to provide over $800 million to eligible providers.

Finding Opportunity in Adversity: Optimism for the Construction Industry

Looking for good news? If so, you are not alone. Aside from the collective mental, physical and emotional human toll imposed by the COVID-19 pandemic, entire sectors of the economy have been ravaged, and old, familiar ways of doing business have been disrupted. Although deemed essential, the construction industry has not been immune to interruption and uncertainty during these unprecedented times. Amid new health and safety concerns, coupled with financial uncertainty, progress on projects has slowed, and the start dates for a number of new projects slated to begin in 2020 have been deferred. However, resilience has always been a trademark of contractors, subcontractors and other industry professionals. Reports indicate that while the construction industry lost more than one million jobs February through April, at least 600,000 of those jobs had been gained back by the end of June.

Yard Sign Do’s and Don’ts: How to Avoid Legal Challenges to Municipal Sign Codes this Election Season

As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality.