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How hospitals can get ahead of the coming CMS price transparency enforcement wave

September 22, 2021
From the November 2021 issue of HealthCare Business News magazine

Compliance tips
Hospitals should view CMS’s proposed rule as a warning that the grace period for noncompliance is closing and to minimize risk, take steps to post at least a good faith effort at the requisite information files by January 1, 2022. But unfortunately coming into compliance is not necessarily a simple task. Many hospitals have criticized CMS’s estimated compliance costs—$11,898.60 per hospital in year one, with “minimal burden on hospitals for remaining compliant” going forward—as grossly unrealistic.

Hospitals can expect that they will need to aggregate a cross-functional team comprised of operations, network system administrators, revenue cycle management, and lawyers. Structural implementation decisions should be made as soon as possible, such as whether to use paid claims or data from contract management systems, and which 230 shoppable services to post (CMS suggests these should be selected at least in part based on the frequency at which they were provided in the prior year). Special consideration should be given to identifying the charges for service packages, as these rates will not be specifically listed in existing chargemasters but must nonetheless be calculated and disclosed.

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Hospitals should also decide whether, based on their existing infrastructure for providing price estimates, it would be preferable to satisfy the shoppable services requirement by instead maintaining an internet-based price estimator tool. This decision may be influenced by how the hospital plans to come into compliance with related requirements under the No Surprises Act to provide advance good faith estimates of costs for out-of-network services.

Finally, to the extent hospitals must take positions on ambiguous regulatory provisions, they should document the reasonable basis for their interpretation. This documentation can provide a possible basis for challenging CMPs in the future.

About the author: Brenna E. Jenny is a partner in Sidley Austin’s Healthcare group. Until January 2021, she served as the Principal Deputy General Counsel at the Department of Health and Human Services and the Chief Legal Officer for CMS.

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