The hallway, not the table
Negotiation is who sits in the room. This is the statute that keeps the US night legal, the bills that tried to unwind it, and who stood in the door. The hospital still extracts 2–3× Medicare. The plan passes it through. Congress never set the commercial rate — and the lobby likes that gap. See who bargains with whom · Maryland all-payer.
Who stands in the door · What keeps it high · What they tried
Four desks. They do not write the same invoice. They all like the night staying a secret contract.
WantsThe commercial night stays a secret contract. 340B child sites and the HOPD extra keep paying for the tower.
KillsSite-neutral. A federal all-payer rate. Transparency with teeth. They sued the 2019 price-posting rule and lost. They have not stopped filing.
WantsMedicare may not bargain as a country. Launch list stays the reference. Twelve years on a biologic, then a thicket.
KillsH.R. 3. Most-favored-nation. Inflation Reduction Act expansion past the short list. They are in court over the ten drugs that did pass.
WantsA rebate off a high list is the product. Spread and specialty lock-in look like savings in a pitch deck.
KillsRebate pass-through. Spread-pricing bans with enforcement. A national list that would make the rebate theater pointless.
WantsA network to sell, ERISA so states cannot treat the self-funded book as an insurer, the ESI tax exclusion so the premium stays pre-tax.
KillsThey do not write the 2–3× hospital night. They pass it through. They will fight a public option that steals the book. They will not lead all-payer.
Statutes, gaps, and safe harbors. Some are a bill someone passed. The commercial hospital rate is a bill nobody passed.
DoesMMA §1860D-11(i): Medicare may not negotiate Part D prices or set a formulary. Until the Inflation Reduction Act, the country’s largest drug buyer was forbidden to bargain as a country.
Behind itThe drug-makers’ lobby (PhRMA). The Medicare Modernization Act was the vehicle. The clause was the point, not a side effect.
Who stops a fixPhRMA and the biotech lobby (BIO). The Inflation Reduction Act punched a hole for a short list. The rest of the formulary is still this statute.
FateStill the default. The 2022 Inflation Reduction Act is the exception, not the repeal. Open
DoesCongress sets Medicare IPPS/OPPS. It never set the job-plan night. Commercial is a private contract. That absence is the 2–3× (RAND).
Behind itNot a bill someone snuck through — a bill nobody passed. The American Hospital Association lives on the gap. Job plans cannot drop the must-have emergency department.
Who stops a fixThe American Hospital Association, the Federation of American Hospitals, and state hospital associations. A federal all-payer statute would be the fix. Maryland needed a CMS waiver to do it as one state.
FateStill missing. See Maryland: one stay, one rate, whoever pays. Open
DoesThe same clinic visit, scan, or infusion pays more in a hospital outpatient department than in a physician office. Medicare wrote a site differential. Commercial copied it.
Behind itHospital systems buying up offices and flipping them to HOPD. The statute and CMS OPPS are the peg.
Who stops a fixThe American Hospital Association. Site-neutral has been a MedPAC recommendation for years. Every serious House package that includes it hits the same wall.
FateStill law. MedPAC keeps repeating itself. Open
DoesStatute: a ceiling so safety-net hospitals can buy cheap. Practice: child sites and hospital-outpatient chairs. Buy at 340B, bill the job plan near ASP-plus. The spread is the product.
Behind itWritten as charity. Expanded as a hospital revenue line. Covered-entity growth is the American Hospital Association’s defense brief.
Who stops a fixThe American Hospital Association defends the child-site map. The drug-makers’ lobby (PhRMA) restricts 340B and sues. Neither side is trying to make the job plan pay a national list.
FateStill the chair. Reform bills stall as ‘protect 340B’ vs ‘protect the manufacturer.’ Open
DoesAnti-Kickback safe harbors let a manufacturer pay a PBM a rebate off list. List stays high so the rebate looks large. Net is still ~3× other OECD after a US haircut (RAND).
Behind itManufacturers and PBMs. The rebate is the negotiation. Nobody bargains the sticker as a country.
Who stops a fixThe PBM lobby (PCMA). Rebate-rule attempts (Trump 2020, later delays) die in court or in the Federal Register. Pass-through bills die in committee.
FateStill the PBM pitch. A national list would make this theater pointless. Open
DoesBPCIA: 12 years of biologic exclusivity. Hatch-Waxman 30-month stay and Orange Book listings stack on small molecules. Patents on the pen, the buffer, the schedule.
Behind itThe drug-makers’ lobby (PhRMA) and the biotech lobby (BIO). ACA created the biosimilar path and the 12-year wall in the same bill.
Who stops a fixPhRMA. Patent-thicket bills and ‘skinny label’ fights. Launch biosimilars still take years the statute already paid for.
FateStill the calendar on Humira-class and the next one.
DoesSelf-funded employers are not ‘insurers.’ States cannot make them take a public option, a rate cap on the plan, or a lot of PBM rules. Most large-group lives sit here (Kaiser Family Foundation).
Behind itLarge employers, then. They still want the preemption. It is why a state all-payer has to regulate the hospital (Maryland) or get a CMS waiver — not the ERISA plan.
Who stops a fixBusiness lobbies. The PBM lobby (PCMA) uses ERISA to fight state PBM laws — Rutledge (2020) limited that move, they still try.
FateStill the ceiling on what a governor can do to the job-plan book. Open
DoesState COPA statutes shield some hospital mergers from antitrust. Cross-market systems grew. RAND’s 2–3× is what a must-have system extracts after the merger.
Behind itHospital systems and the state bills that blessed them. FTC/DOJ under-enforced cross-market hospital deals for a long stretch.
Who stops a fixThe American Hospital Association on the Hill. 2023 merger guidelines are a memo, not a statute. You cannot un-merge a system with a press release.
FateThe night rate is the downstream. Breaking up is rarer than a new COPA. Open
House bills, a reconciliation slice, a rule a judge enjoined, one state that actually posted a rate. The rest died in the Senate, in court, or as a file dump nobody can shop.
DoesLet HHS bargain a basket of brands, with an international-reference cap. The House passed it. That is the closest the US came to bargaining as a country on drugs.
Behind itHouse Democrats (Cummings / Pallone). Pelosi’s House put it on the floor.
Who stops a fixThe drug-makers’ lobby (PhRMA). The Senate did not take it up. McConnell’s Senate was the door. The Inflation Reduction Act later took a thin slice in reconciliation so it could not be filibustered.
FateDied in the Senate. The Inflation Reduction Act is what fit through reconciliation. Open
DoesMaximum fair prices on a short list (10 in 2026, then more). Insulin $35 on Medicare. Inflation rebates. Still ~2.8× the OECD average on those ten (Peterson-Kaiser Family Foundation). Commercial and the rest of the formulary are not in the room.
Behind itReconciliation. Manchin kept it. That is why it is ten drugs and not H.R. 3.
Who stops a fixThe drug-makers’ lobby (PhRMA) — in court. Chamber. The next expansion needs 60 votes or another reconciliation that looks like this one.
FateLaw. Narrow on purpose. The rest of the pharmacy is still PBM list. Open
DoesTrump CMS interim rule: Medicare Part B would pay a peer-country price for some physician-administered brands. That is H.R. 3’s idea, as a regulation.
Behind itWhite House / CMS 2020.
Who stops a fixThe drug-makers’ lobby (PhRMA) sued. A federal judge enjoined it. It never paid a claim.
FateEnjoined. Not revived as a final rule that stuck.
DoesPay the same Medicare rate for the same service in a hospital outpatient department and a physician office. The Lower Costs, More Transparency Act packaged a slice of this. CBO scores real money because the extra is the point.
Behind itMedPAC, year after year. House Energy & Commerce / Ways & Means packages. Some employers.
Who stops a fixThe American Hospital Association. This is their federal hill to die on. Rural and ‘off-campus’ carve-outs are how the bill gets sanded down to nothing.
FateHouse has passed versions. Senate has not made it law. The HOPD extra remains. Open
DoesCMS rule: post standard charges, including negotiated rates, in a machine-readable file. A shopper still cannot use most of the files. Fines have been small next to a 3× night.
Behind itTrump CMS. Biden CMS kept it and raised penalties.
Who stops a fixThe American Hospital Association sued (AHA v. Azar) and lost in the D.C. Circuit. Noncompliance is the second strategy. A file dump is not a cash menu.
FateLaw. The night is still secret in practice. See Shop for a posted menu. Open
DoesBans surprise out-of-network bills for emergency and in-network-hospital ancillary. Independent dispute resolution for the rest. Bipartisan, inside the year-end package.
Behind itA rare coalition: plans, employers, patient groups. Congress wanted the campaign ad.
Who stops a fixHospitals and air ambulance on the IDR formula. They keep litigating the rule so the ‘surprise’ is gone and the IDR award stays fat.
FateLaw. It does not set the in-network 2–3×. It stops the ambush bill, not the contract.
DoesHSCRC posts one hospital rate. Medicare, Medicaid, and commercial sit near it. The 2014 waiver added a global budget so the hospital cannot make it up on volume. Live US proof.
Behind itMaryland, CMS. A waiver, not a 50-state statute.
Who stops a fixEvery other state’s hospital lobby, when someone copies it. No federal all-payer followed. The American Hospital Association will not volunteer.
FateLaw in one state. The control on this site’s hospital table. Open
DoesSCOTUS: Arkansas can regulate PBM spread-pricing even when the plan is ERISA. States started passing pass-through and spread bans.
Behind itArkansas, then a stack of states. Attorneys general who could see a pharmacy close.
Who stops a fixThe PBM lobby (PCMA). They still sue. ERISA is the first argument. A 50-state patchwork is not a national list.
FateA crack, not a ceiling. The brand list is still US list. Open
The table: Negotiation · Maryland · Hospital prices · Brand drugs · Problems / solutions · National debt · Positioning · Flagship · The plant · Hostile world · Kill the monopoly · Evidence