June 26, 2019
On Monday, June 24, The White House released an executive order aimed at requiring insurers, physicians and hospitals to provide patients with more digestible information about the cost of their care before they receive it. Our legal team at Steptoe & Johnson breaks it down and highlights relevant sections for brokers.
At the end of June, President Trump signed an executive order (EO) aimed at improving price and quality transparency in the healthcare system and empowering patients to make more informed healthcare “shopping” decisions. This latest EO follows a series of similar directives in the health space, including those on expansion of association health plans, short-term limited duration insurance, and health reimbursement arrangements. As with those prior EOs, this one is expected to drive future rulemaking activity at the agencies and represents a first step in that longer process. The agencies may or may not have statutory authority to fulfill the EO’s directives and any resulting rulemakings could – as with previous EO-driven rules – be subject to litigation challenges. To the extent Council members are impacted by the issues raised in the EO, we will have opportunities to weigh in with the agencies to help shape any final regulatory measures.
Of note for Council members, this EO calls for new rules or guidance with respect to:
- increasing public access to de-identified claims data,
- expansion of permissible pre-deductible, low-cost preventive coverage for high-deductible health plans (HDHPs), and
- further investigation of steps the administration could take to address surprise billing.
More specifically, the EO contains the following directives:
- Within 60 days, the Department of Health and Human Services (HHS) shall propose rules to require hospitals to publish consumer-friendly information on standard charges for services, supplies, and/or fees;
- Within 90 days, HHS, Treasury, and the Labor Department shall issue an advance notice of proposed rulemaking on a proposal to require providers, insurers, and self-insured group plans to provide patients with information about out-of-pocket costs before they receive care;
- Within 180 days, HHS, in consultation with several other agencies, shall increase public access to de-identified claims data from taxpayer-funded health programs and group health plans to promote and facilitate development of innovative transparency tools for consumers; and relatedly, the agencies shall create a list of priority data sets that, if de-identified and released, could advance these goals;
- Within 180 days, Treasury shall issue guidance to expand access to HDHPs that are used alongside health savings accounts and cover – pre-deductible – low-cost preventive care that maintains health status for individuals with chronic conditions;
- Within 180 days, Treasury shall propose rules to expand the definition of eligible medical expenses under 26 U.S.C. 213(d) to include “certain types of arrangements” (e.g., direct primary care arrangements and healthcare sharing ministries); and
- Within 180 days, Treasury shall issue guidance to increase the amount of funds that may be carried over at the end of the year for flexible spending arrangements.
The EO also requires various federal agencies to generate reports on the following:
- Ways in which the government and private sector are impeding transparency for patients, and providing recommendations to address those obstacles;
- A roadmap for aligning quality measures across the federal health programs, including Medicare, Medicaid, the Military Health System, and the Veterans Affairs Health System; and
- Additional steps the administration could take to implement its principles on surprise billing (e.g., increasing upfront pricing transparency for scheduled services and out-of-pocket costs that may be incurred).