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In other ways, however, enacted findings and purposes are different from other statutory language. For example, they are drafted by political staff who are much more closely connected to members of Congress than nonpartisan drafters from Congress's Offices of Legislative Counsel, who often draft the more technical provisions of statutes.8 In fact, Legislative Counsel explicitly discourage the inclusion of findings and purposes in bills, advising Congress that those materials are best left to committee reports.9 Despite this admonition, Congress continues to frequently include them in statutes. Findings and purposes are prominently placed at the beginning of statutes and are written in plain language that is intelligible to members of Congress and their high-level staffs, and so they may be the statutory language that members of Congress and their high-level staffs are most likely to read. Members of Congress generally engage with legislation at a relatively high level of abstraction, and it may be that enacted findings and purposes, rather than the much more voluminous *673 unenacted legislative history, best reflect members' understanding of why a bill was drafted and what it was meant to accomplish.

Another notable difference between findings and purposes and other statutory text is in the way they are codified. Although findings and purposes are valid law published in the Statutes at Large, which contain the law as passed by Congress and signed by the president,10 it is common practice for a bill to be stripped of its findings and purposes before the rest of the statute is placed in the main text of the US Code.11 Findings and purposes most commonly end up in notes to the Code, where they can be difficult to locate and identify as enacted text because they are often placed far from much of the rest of a bill's text and often appear similar to other unenacted editor's notes. Even more surprisingly, findings and purposes are sometimes left out of the Code altogether.12 The decision of where to put findings and purposes in the Code, or whether to leave them out altogether, is made by the Office of the Law Revision Counsel (OLRC), an unelected body within Congress that is responsible for the codification process. These technical organizers of the Code have significant power over how (and in some cases, whether) courts, litigants, and the public see the law, but their role has gone unnoticed by scholars and judges. It is peculiar, to say the least, that this office regularly hides away in notes some of the most salient text that Congress *674 enacts, and does so in ways that are inconsistent and based on institutional practice that is not accessible to outsiders. This codification process is a potential explanation for the scant attention enacted findings and purposes have received from courts and scholars.

Along the same lines, Professor Eric Gouvin's proposal shared some similar features with the recommendations propounded by some of the other writers previously discussed, but ultimately pursued a more ambitious agenda than the others. Justice Ginsburg, Professor Kramer, and Professor Eric Gouvin each noted that the Office of the Law Revision Counsel for the United States House of Representatives has the “paper” authority to serve as the kind of law revision committee that Justice Cardozo envisioned, but has never done so.155 [FOOTNOTE 155 BEGINS] Ginsburg, supra note 108, at 1432; Kramer, supra note 16, at 78-79 (“[W]hile this body's statutory mandate is broad enough to permit it to serve a planning function, lack of resources has limited it to the strictly ministerial task of keeping the United States Code up to date.”); Eric J. Gouvin, Truth in Savings and the Failure of Legislative Methodology, 62 U. Cin. L. Rev. 1281, 1370 (1994) (“Although on paper the Office of Law Revision Counsel's powers sound impressive, its modest staffing, limited compensation levels, and lack of participation by members of Congress translates into limited prospects for meaningful revision of federal statutes as a practical matter.”). [FOOTNOTE 155 ENDS] All three writers described this phenomenon as a significant lost opportunity.156 [FOOTNOTE 156 BEGINS] Ginsburg, supra note 108, at 1432; Kramer, supra note 16, at 79 (“As a result, Congress gives little systematic consideration to the impact of new legislation on the federal courts. What planning takes place is done haphazardly in committee, and on those occasions when serious consideration is given to structuring federal jurisdiction, questions of efficiency are seldom in the foreground.”); Gouvin, supra note 155, at 1370 (“By invigorating the Office, the judiciary's task of deciphering legislation might be made easier and the quality of the legislative product may improve.”). [FOOTNOTE 156 ENDS] Gouvin noted that political realities may prevent the Office from effectuating change, even if it were granted the power to do so.157 *193 Notably, however, the kind of changes Professor Gouvin imagined this office undertaking seemed to go beyond the “noncontroversial” and “housekeeping” functions that Justice Ginsburg and Professor Kramer suggested would fall within the jurisdiction of a law revision commission, making Professor Gouvin's proposal arguably more consistent with Justice Cardozo's vision and the American Law Institute model than the more limited proposals are.158

EPA argues that the Office's determination of the text of Section 111(d) presented in the United States Code is entitled to no deference, see EPA Br. 46-49, refusing to acknowledge that Congress provided that the contents of the Code “establish prima facie the laws of the United States.” 1 U.S.C. § 204(a). Instead of offering any interpretation of this statutory provision, EPA relies on a footnote in United States v. Welden, 377 U.S. 95 (1964), for the remarkable proposition that the Code “is entitled to ‘no weight.’ ” Id. at 99 n.4. EPA neglects to mention that the Welden footnote dealt only with the “change of arrangement” of statutes and merely applied the rule that even when Congress changes the arrangement of statutes, “it will not be inferred that Congress ... intended to change their effect unless such intention is clearly expressed.” Id. (quotation omitted).

EPA also states that “the text in the Statutes at Large controls” over the Code when “there [is] a substantive difference between the two.” EPA Br. 47. Instead of identifying any “substantive difference,” EPA relies upon a failed conforming amendment that the Office correctly determined could not be executed because it did not have priority over an earlier substantive amendment in the same bill. EPA refers to the Section 302(a) conforming amendment as “unexecuted text” and demands that it be “considered and given effect.” EPA Br. 48 n.23. But it has been “considered” by the Office and found to have no effect because it did not have execution priority. Given that a *15 separate provision in the same bill deletes the text it would amend, there is no effect for it to have. Even if it had priority over the earlier substantive Section 108(g) amendment, the result would be the same: After Section 302(a) conformed the cross-reference, the cross-reference would then be deleted by Section 108(g) and replaced with the language that is in the Code. Thus, the text of Section 111(d) in the Code is exactly the same as it would be if the two amendments were executed in reverse order.

Judge Friendly expanded on Cardozo's proposal forty years later.94 Friendly objected to statutes that displaced the courts yet contained mistakes that the legislature failed to correct. These mistakes included statutory language that conflicted with likely legislative intent and ambiguous *1292 and vague statutes where there was no real controversy within the legislature about the appropriate clarification.95 Friendly listed seven reasons why the legislature was better positioned to correct statutory mistakes than the courts,96 and he sharply criticized Congress for not making the correction of such mistakes a higher priority.97 But Friendly found Cardozo's notion of a “Ministry of Justice” to smack of an executive department, whereas to Friendly “[i]t would seem elementary that an agency whose task is to formulate legislation and secure its enactment should be attached to the legislature.”98 Friendly envisioned a committee examining all Supreme Court and federal court of appeals decisions, addressing only noncontroversial matters (at least until it had established itself), and supporting rather than supplanting existing congressional committees by doing the work that had been left undone.99

Justice Ginsburg picked up where Friendly left off.100 She, too, focused on statutory mistakes involving noncontroversial issues that Congress tried but failed to resolve when it enacted unintentionally ambiguous *1293 statutory language.101 Ginsburg also agreed that Congress should do the correcting, and she recommended that Congress should “assign[ ] to designated members responsibility to hear judicial pleas for a clear statement of ‘what [Congress] meant (or in any event what it means now).’ ”102 She suggested two bodies that could solicit examples of statutory mistakes and advise concerning possible corrections from all interested parties.103 [FOOTNOTE 103 BEGINS] Ginsburg suggested that the House's Office of the Law Revision Counsel could emphasize statutory clarification. Alternately, Congress could create a new committee to review cases interpreting statutes and to draft proposed statutory amendments if necessary. Id. at 1016 (citing Letter from Justice Stevens to Rep. Kastenmeier (Oct. 25, 1983), reprinted in A Bill to Establish an Intercircuit Panel, and for Other Purposes: Hearings on S. 704 Before the Subcomm. on Courts of the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 34-36 (1985)). Ginsburg offered several options regarding the placement and composition of the committee, including separate committees in the House and the Senate, a joint subcommittee of the Judiciary Committees of both chambers, or a committee like that advocated by Judge Friendly that contained members from outside Congress as well. Id. at 1016-17. [FOOTNOTE 103 ENDS]

The problem of uncodified temporary laws is most acute with those laws that are made temporary by a presumption: the appropriations riders. Except in those cases where there are clear indicia of permanence, or alternatively, where there is clear limiting language,107 the temporary or permanent nature *154 of a rider is once again a matter of judgment.108 There are, of course, constraints to the exercise of that judgment: “The Office of the Law Revision Counsel selects the statutes that meet the statutory requirements for inclusion in the Code.”109 Those statutory requirements, however, are fairly broad. The statute that makes the Code prima facie evidence of the law also states that the statutes in the Code are “general and permanent in their nature.”110

The criteria for permanence can be in dispute. Charles Zinn, Law Revision Counsel to the House Judiciary Committee in the 1950's, stated that “if [an] appropriation bill repeats a particular provision in identical language year after year it is inserted in the Code on the grounds that Congress intends the provision to be permanent.”111 But a U.S. Attorney General's opinion issued at about the same time suggested that successive enactments raised the presumption that the measure was not permanent.112

This year the bipartisan leadership of the House and Senate Judiciary Committees called for the United States Courts of Appeals' widespread participation in a decades-old project to let Congress know about possible technical flaws in statutes.1 Its chief purpose is not to promote remedial legislation but rather to provide legislators and their bill-drafting staffs information about how appellate courts interpret the legislative product. The project is noteworthy as an approach to the long-standing search for practical ways of alerting Congress to drafting problems in judicial opinions and as an example of legislative-judicial cooperation and communication.

I. Some Background

Over the years, several proposals have been made to facilitate statutory revision.232 Justice Ginsburg and her coauthor Peter Huber recommended that a “second look at laws” committee be created, and that the Office of Law Revision Counsel, which has had a ministerial role of correcting citations, assist in “statutory housekeeping.”233 Judge Frank M. Coffin urged that a unit within the judiciary collate and sift judicial opinions with suggestions for the legislative branch and send them to Congress.234 Then-Chief Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit seconded the proposal.235 Judge Wilfred Feinberg called for the Judicial Conference to “designate a handful of law professors working on a part-time basis as *687 a committee to call attention to . . . conflicts [among the circuits].”236 Justice John Paul Stevens suggested that Congress create a legislative mechanism to resolve intercircuit conflicts.237

These thoughts have a distinguished lineage. In 1921, Benjamin Cardozo, then an associate judge on the New York Court of Appeals, drawing upon Roscoe Pound and Jeremy Bentham, recommended the creation of ministries of justice to facilitate law revision.238 In the early 1960s, Judge Friendly stated that “[i]t would seem elementary that an agency whose task is to [help] formulate legislation . . . should be attached to the legislature.”239

For most lawyers the United States Code is the source for statutory authority. If they think about it, which they rarely do, they realize that the law is also found in the Statutes at Large. Inconvenience arises from two aspects of the Statutes at Large. Later amendments or repeals cannot be noted with the original enactment, nor can the original enactment be repeated each time amendments are published. These are among the reasons why codes have proved useful. Nevertheless, not all laws presently in force, even though “general and permanent”’ are included in the Code. Some samples of these omissions will be given. Furthermore, there remain some instances in which the Statutes at Large have a binding effect despite differing language in an enacted title of the Code. These instances are few enough that it is unlikely that anyone would anticipate them; but the examples given may disappoint lovers of certainty and the United States Code.

BRIEF HISTORY OF FEDERAL CODIFICATION

As I was watching the debate about the Obama Administration's landmark healthcare legislation a few years ago, I got a big laugh out of one incident I saw. A Member of Congress made the mistake of admitting in public that he had not read the whole bill, and people jumped all over him. How could he vote for a bill he hadn't even read? After that it seemed like every Member had read the bill--all 2,700 pages of it.

Take out a copy of the Patient Protection and Affordable Care Act (Pub. L. No. 111-148) and try to read it. Let's see, here's something interesting on page 265: “Title XXVII of the Public Health Service Act ... is amended in section 2704 ... as so redesignated by section 1201(2)-(A) in subsection (c)-(i) in paragraph (2), by striking ‘group health plan’ each place that such term appears and inserting ‘group or individual health plan.”’ Or what about this on page 283: “Section 1920(e) of such Act ..., as added by section 2001(a)(4)(B) and amended by section 2001(e)(2)(C), is amended by inserting ‘, clause (i)(IX),’ after ‘clause (i)(VIII).”’ The Affordable Care Act contains page after page of provisions like this, and after you get to title X of the law on page 883, start reading more carefully because you don't want to miss all those amendments that go back and make changes in titles I to IX.

Congress should be very interested in the statutory decisions of courts. Court opinions can significantly shape the meaning of legislation. More fundamentally, they can identify drafting problems that the legislative branch may want to address. In the context of statutory revision, a variety of proposals have been advanced for ways in which courts might more effectively communicate their criticisms and suggestions to legislatures.3 [FOOTNOTE 3 BEGINS] For an excellent review of such mechanisms, especially in the states, see Shirley S. Abrahmson & Robert L. Hughes, Shall We Dance? Steps for Legislators and Judges in Statutory Interpretation, 75 MINN.L.REV. 1045, 1059-81 (1991) (discussing mechanisms for legislative monitoring of judicial opinions that interpret statutes). Then Circuit Judge Ruth Bader Ginsburg and her coauthor Peter Huber have suggested that a “second look at laws” committee be created, and that the Office of Law Revision Counsel be upgraded to assist in “statutory housekeeping.” Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Committee, 100 HARV.L.REV. 1417, 1421 (1987). In addition, Judge Frank M. Coffin has recommended that an entity within the judiciary collate judicial opinions with suggestions for the legislative branch and send them to the Hill, an idea supported by then Chief Judge James L. Oakes of the U.S. Court of Appeals for the Second Circuit. Interview with Judge Frank M. Coffin, THIRD BRANCH, June 1982, at 1, 3-7; James. L. Oakes, Grace Notes on ‘Grace Under Pressure,’ 50 OHIO ST. L.J. 701, 714-15 (1989). Judge Wilfred Feinberg has urged the Judicial Conference to “designate a handful of law professors working on a part-time basis as a committee to call attention to ... conflicts [among the circuits].” Wilfred Feinberg, A National Court of Appeals?, 42 BROOK.L.REV. 611, 627 (1976). Justice John Paul Stevens has also pressed for some mechanism so that Congress could resolve intercircuit conflicts. John R. Stevens, Some Thoughts on Judicial Restraint, 66 JUDICATURE 177, 183 (1982) (examining efficiency and appropriateness of congressional role in resolution of intercircuit conflicts in matters of statutory interpretation). These ideas have historical precedents. In 1921, Justice Benjamin Cardozo, borrowing from Roscoe Pound and Jeremy Bentham, recommended the creation of a Ministry of Justice to facilitate law revision. Benjamin N. Cardozo, A Ministry of Justice, 35 HARV.L.REV. 113, 114 (1921) (citing Roscoe Pound, Juristic Problems of National Progress, 22 AM.J. SOC'Y 721, 729-31 (1917) and THE WORKS OF BENTHAM 597-612 (John Bowring ed., Simpkin Marshall 1843)); see also Larry Kramer, “The One-Eyed are Kings”: Improving Congress's Ability to Regulate the Use of Judicial Resources, 54 LAW & CONTEMP. PROBS. 73, 90-97 (1991). In the 1960s, Judge Henry Friendly commented that it “would seem elementary that an agency whose task is to [help] formulate legislation ... should be attached to the legislature.” Henry J. Friendly, The Gap in Lawmaking—Judges Who Can't and Legislatures Who Won't, in BENCHMARKS 62 (Henry J. Friendly ed., 1967). [FOOTNOTE 3 ENDS]

*2190 Four years ago, The Georgetown Law Journal provided a forum to discuss a proposed experiment in “statutory housekeeping,” as then Judge Ruth Bader Ginsburg aptly phrased it.4 That experiment took the form of pilot project of the Governance Institute5 and the U.S. Court of Appeals for the District of Columbia Circuit. It sought to develop routinized means for courts to transmit opinions to Congress—opinions that have interpreted particular statutes and have identified problems for legislative consideration. The project was concerned with congressional unawareness of many such cases and was committed to the view that improved communication between the branches would improve the work of both branches.

Law often undergoes significant change between enactment and the time it is organized within the U.S. Code, which is a compilation of Congress's individual enactments. The decision of how to organize these individual enactments within the Code, or whether to leave them out of the Code altogether, is made by a nonpartisan group of lawyers within Congress known as the Office of the Law Revision Counsel. These technical organizers have significant power over how (and in some cases, whether) courts, litigants, and the public see an enacted law, although their power differs depending on the type of Code title. This Article's descriptive and normative claims have real-world application because organization and context are central to interpretation, but interpreters have failed to grapple with how codification affects organization and context. This Article argues that interpreters must understand the full complexity of how law is organized and presented before they can make confident pronouncements about congressional bargains and legislative intent. Understanding the codification process provides a more accurate, albeit more complicated, path forward for statutory interpretation.

INTRODUCTION

The strange new reality of Covid-19 is forcing huge changes on all of us, some of which may become permanent features of how we live, work and organise our societies.

We are all being called upon to become more flexible, more adept with technology and more collaborative across borders and time zones.

Tax.The one thing you can’t accuse our tax code of being is simple. In fact, complicated isn’t a word that sufficiently describes the tome that is the US Tax Code. Did you know it’s 3.8 million words long? Did you know that 75 years ago, it was a total of two pages long, but now it’s 189 pages long? No wonder the US tax system is so convoluted and why so many people dread tax season. And why CPAs make so much money.

I Pay How Many Different Taxes?!?!

All over the globe now there are cries for a Green New Deal. What constitutes the GND is another matter. Like the concept of the Job Guarantee, there are now countless versions springing out of various groups, some that only seem to offer a short-term, short-week job or other arrangements that fall short of the way Modern Monetary Theory (MMT) constructs the concept. There is only one Job Guarantee in the modern parlance and that is the MMT concept. Other job creation programs are fine but they should stop using the term Job Guarantee, which is a comprehensive macroeconomic stability framework rather than a job creation program per se. In the same vein, all manner of proposals seem to have become part of the GND. The problem is that many of these proposals sell the idea short and will fail to achieve what is really required – a massive transformation of society and the role the government plays within it. The imprecision is exacerbated by progressives who are afraid to go too far outside the neoliberal mould for fear of being shut out of the debate. So we get ‘modest’ proposals, hunkered down in neoliberal framing as if to step up to the plate confidently is a step too far. This is Part 1 of a two-part blog post series on my thoughts on the failure of the environmental Left and climate action activists to frame their ambitions adequately.

In dictionaries, redistribution is defined as “to alter the distribution of” something.2 This is a useful starting point: what follows is that income redistribution policies encompass all government interventions that alter the distribution of incomes, including those that affect the primary distribution of incomes. As argued in Part II of this volume, granting collective bargaining rights (or denying them) has consequences for the functional distribution of incomes and for wage inequality, as do minimum wages. However, governments alter the primary distribution of incomes in other, often even less visible ways. For instance, the liberalization of financial markets since the 1980s is widely believed to have contributed to a concentration of incomes at the top, and to a shift away from wages and towards profits (see Stiglitz, 2012; ILO, 2012). Likewise, trade liberalization has differential impacts on the incomes of various groups in society (see Jansen and Lee, 2007). Such a broad definition of redistribution underlines the fact that most government action has redistributive consequences. To gain support for unpopular decisions such as the opening of trade, governments sometimes try to compensate the losers and impose a corresponding tax on the winners (ibid.). At this stage, redistribution becomes more apparent since it directly alters the primary distribution of incomes. This direct intervention in the form of taxes and transfers is commonly at the heart of public debates over redistribution, simply because it is more visible, even though the impact can be minuscule when compared the original policy decision. For example, trade compensation schemes are commonly thought to redistribute less than 5 per cent of the gains from trade (ibid.: 75). The concept of fiscal redistribution captures these direct interventions that governments make through taxes and transfers. A key policy concern is often their net effect on income inequality, usually expressed as the change in a summary measure such as the Gini coefficient between the primary and secondary distribution. The impact can be further disaggregated into the direct effect of taxes and mandatory social contributions and the contribution of transfers (see section 6). Tax policies play a crucial role for both aspects: They determine how much resources are at the disposal of governments for social policies, but the structure of the tax code by itself has an impact on inequality. At one extreme, income taxes can be regressive, i.e. the tax rates are lower for those with higher incomes. An example for a tax that widens inequality is the ‘poll tax’, an equal lump sum paid by every resident. However, although the top marginal tax rates have fallen substantially across the industrialized world since the 1970s, modern tax systems are still typically progressive and tax rates increase with incomes. 3 The result is that the rich pay (or are expected to pay) a greater share of their income as taxes, and that inequality after taxes is lower than before taxes. Between these two models lie distribution-neutral regimes with flat tax rates, where everybody pays the same proportion of her or his income in tax.

Fiscal redistribution is defined as the reduction in income inequality, brought about by government via taxes and transfers. Their findings indicate that only in countries characterized as young democracies do elections exert a positive impact on fiscal redistribution.

Almost two million Americans go through bankruptcy every year because of medical bills and illness, despite most having had insurance, owning their own homes, having attended college, and having held responsible jobs.

Under the ACA, insurers have consolidated and narrowed networks, resulting in restricted access to care.

The best argument for a single-payer health plan is the recent decision by giant health insurer Aetna to bail out next year from 11 of the 15 states where it sells Obamacare plans. Aetna’s decision follows similar moves by UnitedHealth Group, the nation’s largest health insurer, and by Humana, another one of the giants.

All claim they’re not making enough money because too many people with serious health problems are using the Obamacare exchanges, and not enough healthy people are signing up.

Why might transparency tools not be successful in reducing health spending? First, in the report by Desai et al, only a small percentage of employees (approximately 10%) who were offered the tool actually used it. Other studies have also found that low percentages of plan members or employees offered price transparency tools use them.3Clearly, if employees who have price transparency tools available do not use them, the tools will not have the intended effect on spending. Second, in the absence of credible information presented simultaneously on quality, many patients may likely assume that higher price means higher quality. This may explain in part why a sensitivity analysis in the study by Desai et al that focused only on patients who used the tool demonstrated that out-of-pocket expenses actually increased. For the average patient as a consumer, in other realms of their lives such as buying cars, food, and houses, higher price uniformly signals higher quality. Information that a particular clinician or clinical setting has a lower cost may be perceived by a patient that the clinician or setting is lower quality, not as a clear signal of higher value. Moreover, rigorous risk-adjusted quality information does not exist for many of the services being compared on price, and the implied assumption that quality is comparable among clinicians, health care settings, or services of differing prices may or may not be warranted. Whether quality varies with price is on some level less important than whether patients perceive that it does, and given patients’ experience as consumers in other realms, it seems more than likely that they would see price as strongly correlated with attributes they would value, such as higher technical quality, better service or amenities, or both. Third, among the 10% of employees who used the price transparency tool, most searched for amounts higher than the highest deductible (53% >$1250 and 68% >$500). The likely effect of providing information on price for services priced higher than consumers’ deductibles has been missed in much of the discussion around price transparency tools. If patients are comparing services based on price for which their share of the cost is $0, the use of a price transparency tool may lead directly to patients selecting the higher-cost options given their likely perception that higher price is a proxy for higher quality and the lack of an incentive to price shop.4 Fourth, it is not clear to what degree patients function as consumers in medical markets. That only 10% of employees engaged with the price transparency tool can be interpreted in various ways. One is that many patients do not actually want to assess the relative prices of medical treatment alternatives in consuming medical services; they use the recommendations of their physicians and receive care from the specialist, laboratory, or imaging center that their physicians recommend. The typical patient may feel that they have so little information about the quality of services relative to a physician that they cannot make these decisions on their own and they certainly would not override the recommendation of their physicians about where to receive additional care. A small percentage of patients may function as consumers who value cost information, but the low rates of engagement with price transparency tools would be consistent with the view that these patients are a minority. Fifth, the effectiveness of such tools could vary considerably with how the tool is designed and how it presents prices. It would be difficult for a patient to interpret whether a particular price in isolation is a “good value.” Unless the information is conveyed in a user-friendly format with relative prices for comparable services side by side in a way that convinces the patient that the clinicians, health care settings, or services being compared are equivalent options, the tool seems unlikely to drive behavior change. The order in which the alternatives are presented, the implicit reference price or default, and the framing (whether the alternatives are presented as lower cost or more costly) could all influence effectiveness.5 Presenting people with too many choices can also be paralyzing, leading to choice overload. Without knowing the details of the interface and how choices are framed and presented, it is difficult to comment on the degree to which these issues contributed to the findings observed by Desai et al, but in general, how these issues are handled likely varies considerably among different price transparency tools in ways that could markedly influence effectiveness. In summary, it is not surprising that price transparency tools that offer patients as consumers information on relative prices fail to lower the rate of spending, given that this information is often offered without accompanying data about quality and for services that would exceed the deductibles of patients. Perhaps by providing meaningful relative information on price and quality and focusing on services with prices lower than a patient’s deductible, such tools could succeed in driving patients to choose higher-value services. However, that will only happen to the degree that patients value this information and want to use it, and it is as yet unknown whether the low engagement rates with these tools reflect true consumer disinterest or that these tools have not yet figured out how to engage consumers. Price transparency tools are not likely the panacea that many have hoped for with respect to controlling health care costs. Health plans could create incentives to use price transparency tools as part of benefit design, but given the results reported by Desai et al and the related considerations, health plans might exercise caution because doing so may be unlikely

Despite its features, the cost calculator wasn’t popular. Though 60 percent of employees with access to it faced a deductible over $500, only 10 percent used it in the first year of availability and 20 percent after two years. The study found that price transparency did not reduce outpatient spending, even among patients with higher deductibles or who faced higher health care costs because of illness. Study after study has showed the same thing. Health plans report that use of their price transparency tools is limited, with many enrollees unaware they exist. The vast majority of plans now provide pricing information to enrollees, but only 2 percent of them look at it. Aetna offers a price transparency tool to 94 percent of its commercial market enrollees, but only 3.5 percent use it. One study found that only 1 percent of residents of New Hampshire used the state’s health care price comparison website over a three-year period. Another study found that use of the price transparency platform Castlight Health was associated with lower payments for lab tests, advanced imaging and office visits. However, the study did not examine outpatient spending over all.