Fight over a state healthcare transparency bill goes mostly uncovered

Andreas Faessler, via Creative Commons

IN OHIO, 3RD RAIL POLITICS—a blog that pledges to show “the side of politics other publications ignore”—recently detailed the political hardball that has blocked the implementation and enforcement of a patient protection law. The Healthcare Price Transparency Law, written by Republican state Rep. Jim Butler and passed in 2015, would require the state’s hospitals, doctors and other healthcare providers to disclose their prices for non-emergency services—a rule that should appeal to anyone who has experienced “sticker shock,” a 3rd Rail blogger wrote. But the law has yet to take effect—and it might not, if the state’s biggest healthcare stakeholders have their way.

“The hospital association is fighting the hardest to avoid this, and their strategy is to divert the effort,” says Butler. “They don’t want their patients to shop for healthcare.”

Butler’s conflict with hospitals is the sort of classic statehouse story that goes mostly unreported these days. And what happens in Ohio is especially important in light of the national push toward price transparency, as well as the political rhetoric about price disclosure as a solution to the healthcare cost dilemma. But with the exception of 3rd Rail Politics (which had its own politics parsed last year by Cleveland.com) and a few op-eds (including one by Butler published in the Dayton Daily News and on The Health Care Blog), there has been scant attention paid to the twists and turns of the disclosure law.

Local papers and a few TV stations reported on the lawsuit, but casual readers and viewers would be hard-pressed to understand their stake in the fight.

Prices of medical procedures can vary widely, and the Health Care Cost Institute (HCCI) proved as much in Ohio. HCCI evaluated claims data from four of the country’s largest insurers and found that Ohio residents pay more than 30 percent above the national average for common medical procedures including CT scans, breast ultrasounds, abdominal ultrasounds, and thyroid tests. (State residents also pay 10 percent more for many other services that are shoppable.) There were also meaningful differences within the state: When Health Affairs published a study comparing price variations for medical services, its blog editor noted that a pregnancy ultrasound in Cleveland costs three times more, on average, than the same procedure costs in nearby Canton.

During a 2015 statehouse press conference, Gov. John Kasich seemed to share Butler’s concerns for transparency. From Gongwer News Service (whose content is largely behind a paywall):

“[Kasich] added that ‘payment reform’ is a major part of the answer for the health care system problems nationwide. ‘You are as likely to ask a hospital or a doctor what a procedure costs as you are likely to ask your minister what his pay is,’ the governor said. ‘Nobody here knows what anything costs and the ability to develop transparency, shopping for quality care’ is key.”

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But when it came down to actually making the price of medical services more transparent, Kasich apparently had second thoughts. Butler’s bill became an amendment to the state operating budget, but the Ohio Hospital Association objected to the amendment, and so, after some legislative wrangling, the amendment was added to the budget of the Bureau of Workers Compensation. The budget passed, and the governor signed the spending bill into law.

“The hospital association thought they had successfully killed it by removing it from the operating budget,” Butler says. He adds that, when the bill passed as part of a different budget, hospitals then began working with the governor’s office to make sure the law would not be implemented on January 1, 2017.

Regulatory legislation generally requires rules to ensure implementation. A committee headed by the governor’s health director was supposed to develop recommendations for rules in order to implement the price transparency law. But those rules were never drafted, and the Kasich administration continued to say it would not enforce the law, Butler tells CJR.

In December, the Ohio legislature met in a lame-duck session, during which the healthcare industry unsuccessfully pushed for delay. Shortly after the session ended, the Ohio Hospital Association and seven other Ohio health organizations filed a lawsuit asking for an injunction to prevent the law from taking effect January 1. The complaint alleged that the law was full of vague terms, and that ambiguities would create endless disputes over whether a procedure was an emergency, and ultimately cause irreparable harm and damage to the public interest because of delayed care. Hearings to lift the injunction have been delayed several times; the next is scheduled for August 14. The suit seems to function as a stalling tactic, until the governor’s proposed budget, which calls for repealing the law, passes on June 30.

To-date, almost all of the coverage has been in response to the lawsuit, and follows an all-too-familiar template: dueling quotes, lack of critical examination of the claims, and little explanation of the disputed issues. The Columbus Dispatch, the Dayton Daily News and a few TV stations reported on the lawsuit, but casual readers and viewers would be hard-pressed to understand their stake in the fight.

“Who knows how long it will take to get the information,” Dr. Brian Bachelder told News 5, the ABC-affiliate in Cleveland, referring to the costs of medical procedures. “It may actually delay you from getting in to see the doctor.” Butler told the station, “The things they bring up in their lawsuit are nothing but manufactured excuses, and if they were truly sincere about wanting transparency, they would have been solved a year ago.” Butler says he has offered to work with the association and other opponents, but is not willing to water down the law—for instance, by requiring disclosures for only a handful of procedures, and then only if a patient asks for them.

The Toledo Blade attempted to offer readers explanatory journalism about state medical prices in 2015 and 2016, but didn’t report on Butler’s law. An April 2016 story tried to explain state medical prices using HCCI’s data, but fell short when it did not link price variation throughout the state to Butler’s transparency law. Instead, the Blade reported, “Some states have passed laws to make it easier for consumers to obtain the information and to promote more transparency in medical pricing, but Ohio is not one of them.” Another story, published just one month after Butler introduced his bill, failed to mention the representative’s legislative effort.

Mainstream Ohio media’s most useful contribution to the transparency debate came from The Columbus Dispatch in early 2016, after the disclosure law was on the books. Ben Sutherly reported on Butler’s bill and provided important context for the political standoff that has followed. A state law enacted a decade ago required most hospitals to provide information to the state health department about how well hospitals performed on various quality measures, as well as their retail prices for care. The numbers were reported on the state’s Ohio Hospital Compare website. However, the paper noted, the website “apparently has not been updated in several years,” and a department spokesperson refused to comment as to why.

Disclosure is not dead yet in Ohio; Butler says he will keep striving for meaningful transparency. Meanwhile, Ohio journalists still have a chance to unravel a tale of state officials working closely with the medical establishment to keep patients in the dark.

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Trudy Lieberman is a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for CJR's Covering the Health Care Fight. She also blogs for Health News Review and the Center for Health Journalism. Follow her on Twitter @Trudy_Lieberman.