David Harlow, J.D., MPH

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The recent healthcare price transparency 

 (E.O. 13877, issued June 24, 2019) has caused quite a stir, even as the final text seems to be a watered-down version of what was originally promised.

The executive order calls for regulations and reports and recommendations that will result in:

Hospitals publicly posting charges and negotiated rates for shoppable services in a format that allows comparison shopping

Providers and payers (including self-insured plans) disclosing out-of-pocket cost information before patients receive care

Promoting competition by reporting on and addressing impediments to price transparency

There are additional pieces of the executive order that relate to quality reporting, sharing of federal data and some specific HSA, FSA and tax proposals.

The administration seems to be trying to get a jump on pending congressional activity in this realm and delivering some version of transparency. In the process, the administration is garnering support from some patient advocates and generating opposition by some associations representing payers and providers.

If you are experiencing a little déjà vu, that’s understandable; the idea of making price and quality data about “shoppable” healthcare services easily available to all is by no means new. Transparency, on its face, seems like it must be a good thing. Alas, nothing is that simple. The key issues, now as always, include at least two key categories of questions:

Are the requirements legal? The principal issue here (assuming we get over the question of scope of executive authority and conflicts with existing law), is whether the requirements are anticompetitive or procompetitive. For example, will mandating the release of price data result in all prices for a given service rising to the level of the highest price for that service disclosed in any given market?

Would compliance yield meaningful data to consumers, enabling informed decision-making about healthcare services and providers? In other words, will cost and quality measures be linked in a manner that is accessible to and understandable by typical consumers? Will the information be shared in a user-friendly format, through a user-friendly channel and in a user-friendly manner?

Since we have been talking about price transparency for ages, let’s consider what we have attempted to date, whether that has worked and what we might do in the future. By “we,” I mean not only the federal government or “The System” as a whole, but also individual healthcare providers and systems.

Let’s start with the obvious: Posting machine-readable chargemasters, as many hospitals did earlier this year in bare compliance with a new federal rule, is really not doing anybody any favors, least of all the hospitals. (As an example, see 

 about the implementation of hospitals’ compliance with this new rule.) We should be able to do better at this stage of the game in terms of hospital price transparency.

Some health plans and hospitals make price estimator tools available online. The best of them are pretty darn impressive and can take into account the specific service in question, the related services that are likely to be added in to the total experience, a patient’s particular health plan’s benefit structure and the health plan’s contract with the healthcare provider. It just 

Unfortunately, such implementations seem to be few and far between (and they are not what the executive order would mandate, anyway).

More typical is the experience I had recently when I decided to try and figure out what my out-of-pocket cost would be for an upcoming routine colonoscopy — a shoppable procedure. My primary care (and most other care) is provided by a provider organization at risk &mdash; possibly at full risk &mdash; under its agreement with my health plan. Nevertheless, the provider organization did not offer useful information, and the price estimator tool on the health plan website did not even surface my provider organization as a potential provider of the service &mdash; even though I was logged in and the plan has access to all of my relevant information.

When I called the plan, I was quoted a very specific cost, which was about twice the cost listed on the website. (The amount was initially explained as being higher because it was a hospital price, even though my provider is not a hospital; the specific quote turned out to be an estimate based on average charges in the region, not based on any contract with my provider.) In the next breath, I was quoted an out-of-pocket cost of $0 if the service were coded as preventive. The provider organization and health plan are well-regarded and considered to be ahead of the curve in matters of cost and data and all that, but the information I received was effectively useless.

Under the executive order, I might fare better and get access to a specific charge and a specific out-of-pocket expense, but I might not have a great deal of confidence in the accuracy of the quote. Frankly, while the zeitgeist seems to favor price transparency, experience in the marketplace has shown that when price transparency has existed, few, if any, patients make use of it, even for shoppable services.

The Federal Trade Commission had occasion to opine on draft state transparency legislation about four years ago, and it essentially said that releasing payer-provider contract terms (as the executive order might be read to require) was a nonstarter, was anticompetitive. Specifically, 

 in a blog post describing the policy perspective laid out in a formal letter to the State of Minnesota:

“We believe it is possible to give consumers the specific kinds of information they need to make better health care choices, while avoiding broad disclosures of bids, prices, costs, and other sensitive information that may chill competition among health care providers. Striking the right balance, and mitigating the risk of harm to the competitive process, requires careful fine-tuning of transparency laws and regulations. As with all things, details matter.”

States have been trying to get at this data on a local level for years, with mixed results. All-Payer Claims Databases (APCDs) collate data — but not from all payers, it turns out. About half of all states have APCDs, but the Supreme Court has exempted self-insured plans from their reporting requirements, meaning we lose access to data on about a third of the population. (For a taste of some legal esoterica and a sense of the implications, see my post on 

. Speaking of which, the portions of the executive order seeking to mandate actions by self-insured plans could face the same fate as the state law thrown out by the Supremes in the APCD case.)

Rather than worrying about how to challenge the legality of the executive order or questioning the effect of its implementation on markets, concerned healthcare provider organizations and health plans should be lobbying the administration to exercise its discretion within the considerable latitude of the language of the executive order and deliver a set of regulations that will be useful to the market and market participants (such as patients with high deductible health plans). Heck, forward-thinking organizations could take steps today to begin to implement the technology-enabled, consumer-friendly, accurate, plan-specific cost estimators described above. But the cost estimators are not entirely useful in a vacuum. If they are paired intelligently with quality data, having this information available to consumers is likely to be so much more useful than cost data alone.

David Harlow, J.D., MPH, is a healthcare attorney with deep experience in business, strategy, policy, compliance and proactive counseling in the healthcare industry, working with provider organizations and technology companies of all shapes and sizes. He is recognized as a thought leader in digital health, data privacy and the broader healthcare sphere. David has a deep passion for innovation, a preference for simplicity where feasible and a practical approach to crafting actionable solutions. Read David’s award-winning blog, 

, and listen to his healthcare innovation podcast, 

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Up until now, Medicare Advantage plans have been able to offer telemedicine services beyond those covered by traditional Medicare only as supplemental benefits. But a recently finalized 

Enabled by the Bipartisan Budget Act of 2018, the latest expansion eliminates for Medicare Advantage plans the general Medicare requirement that the patient be in a healthcare facility to receive telemedicine services. (With minor exceptions, this has meant that telemedicine has been covered by Medicare only where the patient is in a healthcare facility — usually a rural healthcare facility &mdash; and a physician &mdash; usually a specialist at a larger facility &mdash; consults via live video link.)

In addition, Medicare Advantage plans are being given broad discretion in implementing this expansion.

The effect that this change is likely to have on the prevalence of real-time video-linked telemedicine (so-called “synchronous telemedicine visits”), as well as on broader telehealth services, should not be underestimated.

Medicare Advantage plan members represent a growing percentage of Medicare beneficiaries. The 

 show that, of the 64 million Medicare beneficiaries today, 22 million are Medicare Advantage members. This represents the culmination of a steady increase both on a percentage basis and on an absolute basis over the past 20 years. Within the Medicare population, telemedicine has slowly but surely gained traction over the years, with rural telehealth visits 

 over 25% per year in the decade ending in 2013. As the ranks of Medicare Advantage members come to include more and more folks comfortable with transacting everything in their lives via their smartphones, tablets and laptops, the opportunity for the healthcare delivery system to provide more interaction via telemedicine continues to grow.

, “We believe MA (Medicare Advantage) additional telehealth benefits will increase access to patient-centered care by giving enrollees more control to determine when, where and how they access benefits.” The feds also estimate that moving telehealth from supplemental to basic benefits will save beneficiaries $80 million over 10 years, and that the expansion will save beneficiaries more than $500 million over 10 years by reducing travel time to providers. Officials say that covering the services as part of the basic benefits will increase utilization. In the zero-sum game of federal budgets, this means that there is a baseline assumption that increased telehealth utilization will generate savings in other line items; otherwise, other line items will have to be cut to accommodate the new kid on the block.

It is also important to note that the rule has a broad definition of telehealth services provided via electronic exchange: “Secure messaging, store and forward technologies, telephone, videoconferencing, other internet-enabled technologies and other evolving technologies as appropriate for non-face-to-face communication.” The federales deliberately do not define the technology in a limiting way, and do not even define the type or scope of care that is clinically appropriate to be delivered in this manner, leaving it up to the Medicare Advantage plans to work out both the scope and the appropriateness issues.

So, what can a forward-thinking health system do to take advantage of the opportunity that this new Medicare Advantage regulation represents? It is an opportunity for the provider organization, for the MA plan and, of course, for the beneficiaries as well (and not just in terms of saved coinsurance dollars and travel time).

There will be time to grow telehealth offerings over time, but behavioral health services might be one of the areas in which a healthcare provider organization could begin to offer services under the expanded telehealth benefit. Provider organizations would do well to continue to grow their capacity to deliver behavioral health services via telehealth platforms. This mode of service delivery addresses the reluctance of some patients to be seen entering a mental or behavioral health professional’s office, and it also addresses the severe shortage of mental health professionals and maldistribution of resources — making behavioral health services available to patients with opioid abuse conditions who live in rural areas, for example.

It is worth noting that venture-backed digital health and digital therapeutics companies have already recognized the potential value of this market; companies including Omada and Livongo, which began by addressing pre-diabetes and diabetes, respectively, have recently expanded into behavioral health services. More traditional healthcare provider organizations would do well to observe this trend and consider how they may emulate companies that sometimes seem nimbler. In addition, easier access to mental health services will likely reduce the burden on primary care providers, who end up shouldering much of the caseload that should be directed to behavioral health team members.

The Medicare Advantage coverage expansion for telehealth services should be leveraged to streamline administrative and data collection functions and to improve care coordination, care management and direct patient care. This opportunity is magnified because it comes together with the expansion in coverage over time on the commercial side, and other recent incremental changes to Medicare rules on telehealth (for example, see the 

Modernizing Medicare Physician Payment by Recognizing Communication Technology-Based Services

, adding coverage for virtual check-ins, review of store-and-forward still or video images sent by patients, remote monitoring and consults).

In order to reap the benefits, provider organizations will need to continue to invest in the deployment of telehealth tools, and patients and clinicians must be educated about the range of tools available and the benefits that they will enjoy as a result of their use. (While it should go without saying, deployment of telehealth tools must also be grounded in foundational data privacy and security policies and procedures, infrastructure and staff and patient education.)

More broadly, as we continue the drive from volume to value across all payers, cost-effective deployment of telehealth tools in support of patient care will help move closer to achieving the Quadruple Aim, benefiting all participants in the healthcare delivery marketplace.

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