Ending Insurer Discrimination Against Licensed Healthcare Providers

The Affordable Care Act contains several sections that direct the nation’s health care system to include the practices and practitioners of integrative health professionals (also called complementary and alternative medicine, or CAM, providers).

The most important of these is Section 2706(a), “Non-Discrimination in healthcare” which is part of the ACA section entitled “Health Insurance Market Improvements.” That section also includes provisions that forbid insurers from excluding people with pre-existing conditions from coverage.

In 2013 – before Section 2706 went into effect – CoverMyCare’s parent, IHPC, created the following video, with a concise explanation about the purpose and nature of the law from Deborah Senn, former insurance commission in the state of Washington.

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The language of Section 2706 is direct on the basics, but has left great uncertainty since its passage:

“A group health plan and a health insurance issuer offering group or individual health insurance coverage shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider’s license or certification under applicable State law.

“This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.”

The first section of this passage is unambiguous. The second has been the source of great confusion and has stalled compliance by the nation’s health insurers (and inspired the creation of the CoverMyCare campaign!)

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Waiting for HHS

The primary reason for the ambiguity stems from a Frequently Asked Questions (FAQ) guidance document published in April, 2013 by the U.S. departments of Labor (DOL), Treasury (DOT) and Health and Human Services (HHS), eight months before the law became effective. (You can see this and all the documents referred to here in the Reference Section at the end of the article.)

Three months later in July the guidance was firmly rebuked by the Senate Appropriations Committee. The committee, including its chairman, Sen. Tom Harkin (D-Iowa), the primary author of Section 2706, criticized the FAQ, which it said:

• “Advises insurers that this nondiscrimination provision allows them to exclude from participation whole categories of providers* operating under a state license or certification.”
• “Advises insurers that section 2706 allows discrimination in the reimbursement rates based on broad ‘market considerations,’ rather than the more limited exception cited in the law for performance and quality measures.
• “Section 2706 was intended to prohibit exactly these types of discrimination.”

* — For example: All naturopathic doctors, all massage therapists, all acupuncturists .

The points of the guidance that were found most objectionable, and which have convinced health insurers that the law doesn’t change their business practices at all:

(The insurer) cannot discriminate … consistent with reasonable medical management techniques

Provider reimbursement rates … may be subject to quality, performance, or market standards and considerations.

“Medical management techniques” and “market standards” are open to interpretation, and were not part of the legislation or its intent, which led the committee to write:

“The Committee directs HHS to work with DOL and the Department of Treasury to correct the FAQ to reflect the law and congressional intent within 30 days of enactment of this act.”

I.e.: March 31, 2014

Still Waiting

About 30 after the deadline, HHS started the process of responding to the committee. It issued a “Request for Information Regarding Provider Non-Discrimination.” During a 90-day public comment period more than 1,000 responses were received. (See a selection of responses in the Reference Section below.)

By late July 2014, with no response from HHS, the Senate Appropriations Committee added this notation to a 2015 funding bill:

“The fiscal year 2014 omnibus directed HHS to correct the 2013 FAQ on Section 2706 of the ACA to reflect the law and congressional intent. The Committee notes that CMS has not complied with this directive. The Committee expects the corrected FAQ by November 3, 2014, or an explanation for ignoring congressional intent.“

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Still Waiting– II

The Nov. 3 deadline came and went with only a reported message to the committee advising that HHS was still working on the new guidance. With changes in the leadership of the Senate Appropriations Committee, many expect the waiting to continue.

The US Senate Appropriations Committee

The members shown in italics below represent states where versions of Section 2706 have been or may be introduced into state legislative sessions in 2015 or where groups are at work pressing for state compliance with the Section.

To track actions in these and other states, please check out our States Section.
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