Philo D. Hall, Senior Counsel in the firm’s Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Modern Healthcare, in “CMS May Not Have Power to Make Hospitals Disclose Negotiated Prices,” by Michael Brady.

Following is an excerpt:

The CMS might not have the legal authority it needs to force hospitals to reveal the prices they negotiate with insurers, a shortcoming that could eventually sink the Trump administration's price transparency push.

The administration delayed its price transparency proposal for hospitals after significant backlash and questions over whether the CMS can even implement the policy legally. While the CMS wanted to include the measure as part of its update to the Outpatient Prospective Payment System, the proposal didn't make it into last week's final rule. …

Congress gave the CMS the power to force hospitals to publish "a list of the hospital's standard charges for items and services provided by the hospital" under the Public Health Service Act. But Congress didn't say anything about negotiated rates, according to legal experts.

"I think one would be very challenged to find evidence in the legislative history or the debate around the ACA that Congress ever contemplated requiring the disclosure of privately negotiated rates," said Philo Hall, senior counsel in Epstein Becker & Green's healthcare and life sciences practice. "The burden would be on the administration to prove that this is what the law and the statute intended.” ...

The Trump administration shouldn't assume that the government can "magically make something happen," Hall said. Data privacy concerns and technical issues could complicate the initiative. It would be tough for the federal government to verify negotiated prices, even if hospitals can figure out how to provide them, he said. …

The CMS submitted a separate rule on price transparency for negotiated rates to the U.S. Office of Management and Budget for approval last week. An updated rule should be coming next year.

"I think the administration is very serious about price transparency as both a policy goal and a political goal," Hall said. "I think they remain committed to being as ... aggressive on price transparency as they can be in 2020."

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