CMS is proposing to hike penalties on hospitals that don't abide by price transparency requirements from $300 daily to potentially thousands of dollars for larger facilities, part of a sweeping outpatient payment rule that's a mixed bag of potential wins and losses for providers.
In the proposed 2022 Outpatient Prospective Payment System rule released Monday, the agency also wants to halt the Trump administration's elimination of the inpatient-only list and seeking comment on how best to update outpatient and ambulatory surgical center quality reporting programs to include more information related to health equity.
Providers heavily opposed the plan to eliminate the IPO list when it was announced in December, as it would have meant losing some business to outpatient facilities.
The Ambulatory Surgery Center Association, with members that could benefit from procedures moving off the inpatient-only list, said the back and forth over the issue has been "jarring," calling for a clear process for providers to submit data on procedures "they believe can be safely performed" in ASCs.
Medical device makers could benefit from increased volume in allowing more procedures to be performed outside a hospital's four walls, though they tend to get lower reimbursement at such facilities.
Hospitals notched a hit with the proposals over price transparency. The hospital lobby lost a legal battle to forestall the requirements altogether. Also, CMS is retaining the cut in 340B drug payments that hospitals are also fighting in the courts. The U.S. Supreme Court agreed earlier this month to hear the case.
Health policy experts and patient advocates have been calling on CMS to stiffen the penalties for hospitals that don't post online the rates they privately negotiate with payers because numerous studies have found the vast majority of facilities are not in compliance with the requirement, which went into effect in January.
If the proposed rule is finalized, hospitals that have 30 or fewer beds will still face the $300 a day penalty but larger hospitals would be fined $10 per bed per day, with a daily cap of $5,500. That would mean that the penalty for a full year of noncompliance would range from about $100,000 to about $2 million.
Another change would require that the machine-readable file including the prices be accessible to automated searches and available by direct download.
The American Hospital Association said in a statement it was "deeply concerned about the proposed increase in penalties for non-compliance, particularly in light of substantial uncertainty in the interpretation of the rules."
In a news release, HHS Secretary Xavier Becerra said the change would be an effort to promote competition. "No medical entity should be able to throttle competition at the expense of patients," he said. "I have fought anti-competitive practices before, and strongly believe health care must be in reach for everyone."
CMS said it was stopping the elimination of the IPO list after receiving numerous comments those opposed to the change "primarily due to patient safety concerns, stating that the IPO list serves as an important programmatic safeguard."
The agency is asking for comments on whether it should maintain the long-term objective of removing the list.
The proposed rule also states CMS is seeking information on a new type of provider established by the Consolidated Appropriations Act of 2021 — rural emergency hospitals that are converted from rural hospitals or critical access hospitals and provide only emergency services. CMS is asking how best to establish safety standards, payment policy and quality measures.
AHA said it supported the policy. "The pandemic has been especially challenging to rural facilities and this model will help to ensure that patients continue to have the access they need," the group wrote.
The agency is also increasing the outpatient and ASC payment rates by 2.3%.
Comments on the proposed rule are due Sept. 17.
