By this point, it's no secret the cost of healthcare services can vary dramatically between different providers of the same services. The Bush, Obama, Trump and Biden administrations all pushed for price transparency in healthcare, but the opposition has been fierce. Many healthcare providers argue that their pricing data should be protected as a trade secret, and that disclosure will lead to increased prices because facilities that charge less may increase their prices to match their higher-priced competitors. Supporters of price transparency believe that it will aid consumers in making well-informed decisions about where to seek healthcare services based on the costs of those services, making it easier for consumers to comparison shop and avoid being blindsided by healthcare costs.
History of Price Transparency
In 2010, the U.S. Congress passed the Affordable Care Act (ACA), which required U.S. hospitals to make public "a list of the hospital's standard charges for items and services provided by the hospital." 42 U.S.C. ' 300gg-18(e) (2018). Hospitals began making available their chargemaster rates (i.e., standard rates without any discounts applied) for their services. In 2018, the Centers for Medicare & Medicaid Services (CMS), an agency within the U.S. Health and Human Services Department (HHS), announced it would require hospitals to post their chargemaster rates online in a machine-readable format. Many complained, however, that consumers remained in the dark because chargemaster prices can be highly inflated and bear little resemblance to what patients can ultimately expect to pay.
On June 24, 2019, then-President Donald Trump issued an executive order requiring the Secretary of HHS to "propose a regulation, consistent with applicable law, requir[ing] hospitals to publicly post standard charge information, including charges and information based on negotiated rates and for common or shoppable items and services," in easy-to-understand formats so as to "inform[] patients about actual prices."1 Thereafter, CMS solicited comments and feedback from thousands in the healthcare field, many of whom objected to the disclosure of the additional pricing information, which they considered to be a trade secret.2 In November 2019, CMS promulgated the final Hospital Price Transparency Rule (the "Rule"), which took effect on Jan. 1, 2021. 45 C.F.R. ' 180.10 et seq. (2021). On July 9, 2021, President Joe Biden issued a separate executive order directing "HHS to support existing hospital price transparency rules and to finish implementing bipartisan federal legislation to address surprise hospital billing."3
The Rule
The Rule requires all U.S. hospitals "to establish, update, and make public a list of the hospital's standard charges for items and services provided by the hospital." 45 C.F.R. ' 180.10. Where one parent company operates multiple hospitals that have disparate pricing, "[e]ach hospital location operating under a single hospital license (or approval) ... must separately make public the standard charges applicable to that location." 45 C.F.R. ' 180.50. Each hospital must "make public" their pricing data in two ways: "(a) A machine-readable file containing a list of all standard charges for all items and services as provided in ' 180.50"; and "(b) A...
