EXCLUSIVE — The Biden administration is "slow-rolling" enforcement of hospital price transparency requirements and fighting to hide thousands of related documents, according to a new report.
Despite the Biden administration's messaging in favor of price transparency, records from the Centers for Medicare and Medicaid Services show inconsistent and often lengthy enforcement time frames for hospitals not in compliance, according to a Foundation for Government Accountability report obtained exclusively by the Washington Examiner.
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FGA obtained records through a Freedom of Information Act request and subsequent lawsuit forcing CMS to comply. The agency released records on 254 hospitals, "many of which are noncompliant," FGA Communications Director Adam Gibbs told the Washington Examiner.
However, CMS decided to withhold over 34,000 pages, claiming they were "trade secrets" and could not become public. FGA said it plans to challenge the withholding of those documents in court.
“From the outside, it appears Joe Biden and his administration want to have their cake and eat it, too," FGA Legal Director Stewart Whitson told the Washington Examiner. "They know voters overwhelmingly support healthcare transparency, but behind closed doors, Team Biden does not want to lose the disproportionate fundraising and campaign contributions they get from the healthcare industrial complex that benefits from a lack of consumer transparency."
A Trump administration rule required hospitals to post price breakdowns of procedures for patients to review to understand the charges they incur during hospital visits. The transparency rule, which came into effect during the Biden administration, was met with objections from medical special interests and was the subject of a lawsuit from the American Hospital Association. The AHA declined to comment.
Theo Merkel, a former adviser to President Donald Trump, told the Washington Examiner that FGA's report "reinforces that many hospitals have continued to keep patients in the dark."
A 2022 FGA analysis of more than 6,400 hospitals found 63% of hospitals were not complying. In 2023, a review of 2,000 hospitals by Patient Rights Advocate found about 75% of hospitals were noncompliant.
The rule sets out a time frame within which CMS will enforce compliance on hospitals with violations, giving hospitals 90 days to comply after an initial warning before requesting a corrective action plan, to which hospitals have 45 days to respond. Hospitals then propose a completion date, which CMS says "has ranged from 30 to 90 days on average." If hospitals still do not come into compliance, monetary fines are issued.
Despite that timeline, the FGA report shows an average of 185 days from the initial warning to a follow-up with a corrective action plan request — and in some cases took nearly a year.
CMS also said the average time to complete a case cycle is between 195 and 220 days. While FGA's analysis shows the average at 251 days, records also indicate some cases taking around 450 days to complete and are "wildly inconsistent," ranging from 63 to 487 days.
Additionally, of the thousands of noncompliant hospitals, CMS has only fined four, leading Rep. Jason Smith (R-MO), chairman of the House Ways and Means Committee, to question how that is possible.
"Do we really think that nearly every American hospital is in compliance? We don’t know because CMS doesn’t make compliance reviews and enforcement actions public," he said in a May committee hearing about price transparency. "We can get more information about a local restaurant from Yelp than you can get about your local hospital from CMS."
Even when those four hospitals have been fined — on average, about $330,000 — FGA's report notes that "the amounts are so insignificant that hospitals can recoup the monetary assessments in as little as 40 minutes of patient revenue."
It is unclear how many hospitals in the country are noncompliant, and the records received by FGA only account for about one-third of warnings CMS claims to have issued. It also only represents half of the corrective action plans CMS said it requested.
"These missing records prevent a full analysis of case closure time frames and processes, as well as conceal certain scrutinized hospitals from the public’s view," the report states.
A hearing for releasing the 34,000 documents is scheduled for July.
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“CMS has failed to enforce the hospital price transparency rule. Now, they’ve chosen to withhold the records and information that would reveal the full scope of their failure.” FGA Data and Analytics Director Hayden Dublois told the Washington Examiner. “The incomplete records provided by CMS to FGA, and the records that haven’t been provided at all, impede our ability to conduct a thorough analysis and suggest that CMS is concealing untold records for unknown reasons.”
"CMS is committed to ensuring consumers have the information they need to make fully informed decisions regarding their health care," the agency said in a statement to the Washington Examiner. "We expect hospitals to comply with Hospital Price Transparency requirements, and are actively enforcing these rules to ensure people know what a hospital charges for items and services."