Nondiscrimination in Health Care — States Stepping Up 2.0

Tuesday, July 21, 2015

DoctorWhen I last wrote about the emerging role of the states in bringing to fruition the promise of the Patient Protection and Affordable Care Act’s (ACA) Section 2706, “Nondiscrimination in Health Care,” several legislatures were starting to move bills through committees with the objective of creating state-based versions of Section 2706.

Six months later, the movement has become seriously tangible. Two states have enacted version of 2706, others have tabled their versions until the 2016 sessions, and one or two simply died in committee. Even in Oregon, a state that successfully enacted its own version of 2706, where the potency of the new law remains uncertain, especially in terms of enforcement, a long-prophesied alternative to legislation and federal guidance has emerged.

Just like Preexisting Conditions, Right?

But to recap, these provisions were written to “correct an imbalance in the health insurance market”: insurer discrimination against the state-licensed providers of a number of health care disciplines, including acupuncturists, massage therapists, optometrists, naturopathic physicians, and chiropractors among others. The imbalance: Millions of people use such services, but insurers leave the providers out of their networks. The language is unambiguous:

“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 that provider’s license or certification under applicable state law.”

The language is also rife with ambiguity, as in the continuation from the paragraph above:

“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 the 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.”

When the U.S. Department of Health and Human Services (HHS) issued guidance on 2706 in the form of a frequently asked questions document (FAQ) in April 2013, 9 months before the section took effect, it was so poorly expressed and contrary to the intent of the legislation that the section’s author, then-U.S. Senator and Senate Appropriations Committee Chair Tom Harkin, demanded that it be expeditiously rewritten. Several ignored congressional deadlines, a sweeping national election, and almost 2 years later, the revised FAQ was released at the end of May, still with plenty of ambiguity (which is discussed below).[1]

In the intervening period, state insurance regulators—interpreting the original, flawed FAQ—asserted that their hands were tied in terms of directing their state-licensed insurers to abide by the law. Insurers quite understandably saw no reason to do much of anything: Section 2706 came without enforcement provisions. Into this period of noncompliance emerged state-based initiatives.

As Oregon Goes, So Goes … the Nation?

Not only was Oregon the first state to enact its version of Section 2706 when Governor Kate Brown signed the bill in May; in July, it became the first state to see the imbalance in its health insurance marketplace addressed by a tactic that one industry observer said in 2013 might be inevitable: a “big, honking lawsuit.”[2]

The Oregon law copies directly from the language of the federal Section 2706:

"An insurer may not discriminate with respect to participation under a health benefit plan or coverage under the plan against any health care provider who is acting within the scope of the provider’s license or certification in this state."

Unlike the federal law, Oregon's statute requires plans to: 

"Contract with or employ a network of providers that is sufficient in number, geographic distribution and types of providers …"

Historically, entire provider "types" (i.e.: acupuncture, naturopathic physician) have been excluded from plans.  Oregon will also require the plans to report how they are complying with inclusion of providers.   As a concession to insurers, the bill does not take effect until 2017.

Also in Oregon, its Association of Naturopathic Physicians filed a class action suit in federal court against the Health Net Health Plan of Oregon and its contracted benefits provider American Specialty Health (ASH), alleging “unlawful and discriminatory practices.”[3] It is the first action citing Section 2706 of the ACA as its legal basis.

The suit focuses in part on the experiences of several patients of naturopathic physicians that are representative of circumstances that other integrative health providers often face: Even if a provider is a contracted member of a plan’s network, reimbursement for services is often denied or filled at a fraction of the percentage enjoyed by conventional health care specialists for treating the same condition, even when it is in the scope of the licenses for both provider types.

The suit’s remedies ask for reimbursement to patients denied coverage, repayment of profits retained by Health Net by not reimbursing, and enforcement of nondiscrimination rules in the future. At least as importantly, and with possible ramifications outside of Oregon, the suit asks for “a court order for Health Net and ASH that clarifies which of their practices are unlawfully discriminatory.”

This last demand really reflects back to the gaping ambiguity that remains in federal agency guidance about this section of the ACA since the April 2013 FAQ that earned the ire of Senator Harkin. The national associations of integrative health care providers such as the naturopathic physicians, chiropractors, and acupuncturists have repeatedly asked the HHS for explicit examples of what constitutes discrimination and what does not. The revised FAQ released at the end of May is thought to be an improvement over the original and may give state insurance commissioners more leeway to act, but it does not contain any such examples.

Let’s compare the two versions:

April 2013: “Until any further guidance is issued, group health plans and health insurance issuers offering group or individual coverage are expected to implement the requirements of PHS Act section 2706(a) using a good-faith, reasonable interpretation of the law.”[4]

May 2015: “Until further guidance is issued, the Departments will not take any enforcement action against a group health plan, or health insurance issuer offering group or individual coverage, with respect to implementing the requirements of PHS Act section 2706(a) as long as the plan or issuer is using a good-faith, reasonable interpretation of the statutory provision.”[5]

As far as can be determined, a commonly held “good-faith, reasonable interpretation of the law” remains elusive, to say the least.

For the remainder of 2015 and going into 2016, expect to see continued coalescence of integrative health providers in the states, including participation by patient groups that will replicate the legislation in Oregon and in Rhode Island, where Governor Angi Riamondo signed its version of 2706 in July. In other states, advocates are generating grassroots support for reintroducing their own initiatives during the 2016 state legislative sessions. Hawaii and California will resurrect bills that passed through committees this year. A multi-practitioner group in Minnesota has draft legislation ready to go.

In the same time frame, we can be sure that the nation’s integrative health and medicine community will be constantly checking on the fate of that big, honking lawsuit as it moves through federal court in Portland.

Taylor manages the website http://www.covermycare.org, which tracks compliance with Section 2706 in the states as part of the consumer information and engagement mission of the site.

 

[1] - The language of the guidance is here:  Original, April 2013 — http://www.dol.gov/ebsa/faqs/faq-aca15.html : revised, May 2015 — http://www.dol.gov/ebsa/faqs/faq-aca27.html         

[2] Weeks, J. (2013, March 3). Non-discrimination: A “big honking lawsuit” to advance integrative medicine and health? The Huffington Post. Retrieved from http://www.huffingtonpost.com/john-weeks/integrative-medicine-obamacare_b_3360728.html.

[3] Oregon Association of Naturopathic Physicians. (2015, July 7). Naturopathic doctors and patients file a class action lawsuit against Health Net Plan of Oregon and ASH networks. Retrieved from http://bit.ly/1HLMruJ.

[4] U.S. Department of Labor. (2013, April 29). FAQs about the Affordable Care Act Implementation Part XV. Retrieved from http://www.dol.gov/ebsa/faqs/faq-aca15.html.

[5] U.S. Department of Labor. (2015, May 26). FAQs about Affordable Care Act Implementation (Part XXVII). Retrieved from http://www.dol.gov/ebsa/faqs/faq-aca27.html.


All postings to the Health Policy Forum (whether from employees or those outside the Institute) represent the views of the individual authors and/or organizations and do not necessarily represent the position, interests, strategy, or opinions of Altarum Institute. Altarum is a nonprofit, nonpartisan organization. No posting should be considered an endorsement by Altarum of individual candidates, political parties, opinions or policy positions.


 

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