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Many healthcare providers and insurers are barred from disclosing contracted prices because of gag clauses and other types of confidentiality agreements. To get a feel for how common gag clauses still are in the healthcare industry, HFMA conducted an informal poll of HFMA Forum members.
Forty Forum members shared details on their organizations’ experience with gag clauses. While the sample was small, the anecdotal results support the belief that there is widespread use of gag clauses in the industry.
Almost half of respondents report that more than 80 percent of their managed care contracts include gag clauses (see the exhibit below).
Seventy-five percent of respondents report that the prevalence of gag clauses has not changed over the past three years (see the exhibit below). Seven respondents said they’ve seen an increase in these clauses.
HFMA thanks all the Forum members who took part in this informal poll. As HFMA and other industry stakeholders begin to address the challenge of price transparency, it is important for healthcare finance leaders to contribute by sharing their experiences.
The article is based on an informal feedback collected Jan. 27-Feb. 11, 2014. Forty Forum members responded to this poll; 39 from provider organizations and one from a payer organization.
Please comment on this poll in the comment section below.
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There is a need for caution here -- and there's probably a good reason for gag clauses -- because there are conflicting public policies at work. The desire for "price transparency" butts up against the antitrust laws.Agreements among competitors with regard to the price of their products are per se (i.e., automatic) violations of the antitrust laws. Hospitals in the same market are competitors, and sharing price information could lead to scrutiny by the DOJ or FTC.It may be possible to share such information in a general and anonymous way (through a state hospital association, for example), but whenever the antitrust laws are implicated the advice of experienced legal counsel is essential.
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