"Malicious Compliance" can be summarized as, doing what you were told but doing so in a manner purposefully detrimental to the spirit of the why you were told to do it in the first place.
Thus, welcome to the Healthcare Industry.
During his time in office, President Trump worked to address key factors preventing our healthcare system from operating on behalf of the consumer.
One step his administration took was a direct executive action to increase transparency in pricing at hospitals.
In short, as part of the rule, healthcare systems would be required to post a master price list on their website so that consumers could see actual charges before receiving care.
Reluctant to share the actual price of their goods and services with their customer (yes as patients are also customers — a fact that is often forgotten by both the patient and the health care system) the "system" sued the administration, but ultimately lost.
As a result of their failed legal challenge, hospital systems found themselves in a position where they must comply. Hesitant to do so, many took a swing at "malicious compliance."
The first step in this effort was to publish their charges online in PDF file formats, thus making it difficult for information-seeking patients to search for actual pricing.
In the event, the format was not difficult enough, many of these hospital systems went further in their efforts to make things difficult in that they listed the procedures with numerical tags and no categorization.
Why is this important?
Because while information seeking patients might be able to find the CPT code for a total knee replacement, 27447, most likely do not know the other codes used during the procedure – physician charge, facility charge, anesthesiologist, imaging, etc.
There are over 8,000 CPT codes and over 68,000 ICD-10 codes; not to mention thousands of DRG codes and the acronym list goes on and on thus making it as difficult as possible for the average consumer to price together with a list.
Technology, however, is a wonderful thing, and as third parties started compiling these lists and creating efficient algorithms to disseminate the information for consumers, hospitals allegedly took additional steps to blur the information.
While researchers from the Hilltop Institute recently uncovered that majority of hospitals they investigated were, as they put it, "unambiguously noncompliant," journalists from The Wall Street Journal found that hundreds of major hospitals, while appearing to be compliant, actively placed malicious code into the pricing list pages to prevent search engines like Google, Bing, or Yahoo from being able to index and search for specific prices.
While still technically complying with the law, these measures to obscure information are like saying you have nothing to hide while at the same time putting ultra-dark tint on your windows.
Efforts taken by these hospitals show a clear attempt to deny medical information to consumers or third parties, and in turn violates the spirit of the law with an open-air of contempt for you, the consumer.
Now that they have been outed by the press, several of these sites have removed the code, claiming that “a vendor must have left it there”, or it’s “leftover code” but do they really expect the American people to believe that a hospital that pays thousands of dollars for high-end web developers hired groups so sloppy they forgot to remove the test code?
While it may be certainly not probable that hundreds of hospitals all seemed to hire the super expensive yet somehow incompetent software engineers that "accidentally" left specifically obfuscating code.
To invoke President Biden, “Come on, man.”
Yet, where do we go from here to prevent this malicious compliance going forward?
One option would be for Congress to create legislation and codify this wonderful Trump era executive order (I know, I had a good laugh, too), but likely this would not only be a massive time-sink, but inevitably loop-holes would be written, and somehow California or New York would get money for a bridge.
Another more likely option would be to correct this at the state level; but we would need to see action on this from all 50 states, and that action needs to be simple, clear, aggressive legislation that protects consumers.
Sadly, the likelihood of this happening at either the state or federal level is improbable, in large part because of the lack of will from legislators to do real health care reform. Maybe this is because the healthcare lobby is the single largest lobby in the United States (larger than Oil, Guns, Tobacco, Defense, combined), but now this is just being cynical.
Regardless, we, the voting, tax-paying consumers must keep the pressure up not only on our elected officials but on the health care system as well.
We can't allow these inimical actions to be forgotten in a news cycle with vain promises from hospitals that they’ll fix it in the future.
We need laws to protect us, as it seems hospitals will not do the right thing unless they’re told to do so, but in the absence of the law, we must utilize the one tool we all have at our disposal — the power of the free-market. Let us not forget that these hospitals are wanting and needing our business and we may be the only ones who can hold them accountable to being transparent. We are the customer and it's time we start acting like it.
Seth Denson is a Business & Market Analyst, Author and Entrepreneur. He co-founded one of the nation's most successful consulting firms and authored the best-selling book, "The Cure: A Blueprint for Solving America's Healthcare Crisis," which takes a deep dive into the business structure of our U.S. health care system and how we can reform it while maintaining our free market. As a regular on-camera contributor, Seth has garnered a national presence discussing a range of topics including business and economics, politics, faith and fatherhood. Originally from West Texas but with international business experience, Seth's "no-bull" approach blends metropolitan thinking with good old-fashioned Texas straight talk. Read Seth Denson's Reports — More Here.
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