There is More to Mandatory Disclosure than Meets the Eye

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“Targeted transparency” can help achieve regulatory and regulated entity goals.

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Requiring hospitals to inform patients of clinical best practices and to disclose performance data are two common regulatory strategies for improving health care. Proponents of such mandatory disclosure laws — sometimes referred to as “targeted transparency” — argue that these laws enhance patients’ ability to make informed choices in choosing their health care providers, thereby creating reputational incentives for hospitals to improve their performance. However, patient response to information and hospitals’ reputational concerns are not the only ways mandatory disclosure laws can improve health care.

Baby holding adult handIn a study due to be published this fall in the American Journal of Law and Medicine, my colleagues, Barbara A. Dennison, Trang Q. Nguyen, and Janine M. Jurkowski, and I investigated the impact mandatory disclosure laws are having on hospitals’ efforts to promote and support breastfeeding. We examined two New York State laws designed to promote breastfeeding, and our findings reveal that, aside from any impact on the relationship between patients and providers, the laws also influence the ways that state regulators and hospital managers do their jobs.

In 2009, New York State passed the Breastfeeding Mothers’ Bill of Rights, which requires maternity care facilities to post a list of best practices against which patients can measure their performance. That same year, the New York State Department of Health (DOH) issued a regulation requiring hospitals to publicly disclose the rate of breastfeeding among their maternity patients. Both laws aim to inform patients as a way to influence hospitals to promote breastfeeding. As of yet, however, little evidence exists about the effect of these laws on patients’ decisions regarding their choice of maternity care providers or on hospitals’ reputational concerns. Nevertheless, our study documents other important effects that the laws have had on relationships between government regulators and hospital administrators and relationships within hospitals between managers and clinical staff.

For example, passage of the Breastfeeding Mothers’ Bill of Rights emboldened government officials to employ traditional command-and-control regulation as a means to implement the law. More specifically, DOH officials promulgated a model breastfeeding policy for maternity care facilities based largely on the Breastfeeding Mothers’ Bill of Rights and encouraged hospitals to adopt the policy by threatening enforcement action for noncompliance. In addition, the Breastfeeding Mothers’ Bill of Rights provided an authoritative source of expertise that guided unit managers and clinical staff in the development of changes in hospital maternity care policies, such as providing breastfeeding support to new mothers and eliminating the distribution of free formula samples. The combination of enforcement pressure and expertise empowered hospital staff to advocate for these policy changes and helped convince senior administrators to approve them.

The DOH regulation requiring hospitals to disclose breastfeeding rates among their maternity patients also influenced management within hospitals. Maternity unit managers used the breastfeeding data required by the regulation to train clinical staff, set performance goals, and monitor outcomes. The regulation has also encouraged frequent collection and use of breastfeeding data for quality improvement. A perinatal clinical nurse specialist in one New York hospital told us that she generates daily reports on breastfeeding rates in her unit and has been able to document a steady increase in the rate of breastfeeding among mothers in the unit. Data have also helped maternity unit managers advocate more effectively within their hospitals for changes in clinical policies.

Repeated reviews of compliance with DOH’s model breastfeeding policy and periodic data reporting have maintained a prominent place for breastfeeding promotion on the agenda of maternity care units and hospital management. Policies must be reviewed for compliance. Data must be disclosed to patients. These requirements continuously demand the attention of administrators, unit managers, and staff.

Our findings suggest that transparency policies can significantly influence government regulators and hospital administrators independently of their effects on patients. DOH officials and maternity unit managers appear to have used the pressure and information generated by New York State’s breastfeeding transparency laws to reform hospital policies and practices proactively, not merely in response to signals from patients.

The example of New York State’s breastfeeding laws suggests that the study of mandatory disclosure more generally — in areas such as financial regulation, environmental protection, food labeling, and workplace safety — would benefit by analyzing not only its influence on public awareness and its reputational effects, but also how regulators use transparency laws and how managers within regulated entities employ the information that they provide.

Timothy D. Lytton

Timothy D. Lytton is the Albert and Angela Farone Distinguished Professor of Law at Albany Law School. He is author of Kosher: Private Regulation in the Age of Industrial Food (Harvard University Press 2013).

This essay is excerpted from a forthcoming article, “There is More to Transparency than Meets the Eye: The Impact of Mandatory Disclosure Laws aimed at Promoting Breastfeeding,” co-authored by Timothy D. Lytton, Barbara A. Dennison, Trang Q. Nguyen, and Janine M. Jurkowski, which will appear in the American Journal of Law and Medicine. Citations have been omitted. The findings presented here are part of a three-year study funded by the Robert Wood Johnson Foundation’s Public Health Law Research program.