The 2016 legislative sessions in several of the nation’s state houses have considered or will consider bills that deal with the existential imperfections of an important section of the Patient Protection and Affordable Care Act, Section 2706, called “Non-discrimination in health care.” It was written to end historic discrimination by health insurance companies against certain types of providers who are licensed in a state but remain outside provider networks.
Most of the providers that these provisions are concerned with are in the class of complementary and integrative (or holistic or alternative) disciplines that serve millions of people every year almost entirely on an out-of-pocket basis: acupuncturists, naturopathic physicians, massage therapists, certified midwives, and even chiropractors, whose presence in health care is extensive but not always on a reimbursable basis.
Section 2706 went into effect January 1, 2014. To date, it is impossible to find a state wherein a commissioner of insurance has directed his or her state-licensed health insurance providers to comply with the provisions of this law.
On one hand, nothing has happened. On the other hand, because little has happened in the Federal Triangle, plenty is happening in the states:
- After more than 2 years of ignoring complaints about how ineffectual the federal statute has been, the U.S. Department of Health and Human Services (HHS) has finally acknowledged that perhaps the law hasn’t had the effect that now-retired author of Section 2706 Sen. Tom Harkin and others expected. Surely they expected more than nothing.
- Activists in several states are moving bills or starting to coordinate advocacy around demands for ending health insurer discrimination against licensed providers.
All of this stems from two factors: (1) inherent shortcomings in the original legislation and (2) basic federal guidance that has had the effect of ensuring that there would be no compliance.
Section 2706 giveth and it taketh away. It lacks any enforcement measures. Guidance issued by the U.S. Departments of HHS, Treasury, and Labor (9 months before the provisions went into effect) were so misleading and contrary to the intent of the law that Sen. Harkin demanded they be rewritten ASAP. That was the summer of 2013. In the spring of 2015, 6 months after Harkin retired from the Senate and 15 months after the law went into effect, new guidelines were issued.  They removed language from the 2013 version that was contrary to the text and intent of the law, but they offered no more clarity on what constituted discrimination, what should be done about it, or who should do it.
The updated guideline also retained a statement of inspired ambiguity that has, in effect, stifled any compliance:
“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.”
The state insurance commissioners who are charged with interpreting Section 2706 and directing companies to comply have repeatedly told anyone who asked—mostly citing the original 2013 guidance—that such guidance is not sufficient.
Among the professional provider organizations most affected by Section 2706, the American Association of Naturopathic Physicians (AANP) has proven to be the most assertive in moving HHS from a basis of “good-faith, reasonable interpretation” to real compliance. After 18 months of email entreaties, at least one in-person meeting, and a public comment period on the subject, the office at the Centers for Medicare & Medicaid Services (CMS) that was assigned to Section 2706 agreed to consider documented examples of discrimination that purport to violate the provisions of Section 2706.
At the end of 2015, AANP, along with six of its state member associations in Washington, Oregon, California, Hawaii, Maine, and Puerto Rico, pulled together this documentation and submitted it to CMS. Each of these state associations reported that insurance regulators responding to their inquiries about Section 2706 were told, “They won’t be taking further implementation steps on Section 2706 without additional federal guidance.”
In April, CMS responded, telling AANP the following:
- The documentation shows clear examples of discrimination that Section 2706 was intended to end.
- Their review process may lead to HHS to reach out to the state insurance commissioners directly.
This acknowledgement marks a sea change in the posture that HHS has adopted since its flawed 2013 guidance. It will be welcome news for other professions whose providers have faced similar discrimination. Licensed massage therapists (LMTs), for instance, report denial of reimbursement, even when another type of provider—a nurse practitioner or physical therapist—delivers a massage to a patient to treat an identical condition. Massage may be covered, in other words, but not when provided by a trained and licensed LMT.
The aggregated examples of discrimination compiled by the AANP shows that it is in the states where the provisions that are needed to end insurer discrimination are taking root. The first evidence of this took place in 2015, when Oregon and Rhode Island enacted laws mirroring Section 2706, either directly or in part. This has inspired others to launch similar efforts and/or start organizing their own initiatives.
A good example is Minnesota, home to a number of highly regarded health care organizations that are very active in providing clinical integrative practices, medical school instruction and research. This includes the Mayo Clinic, the University of Minnesota Medical School, and Allina Health, which houses the Penny George Institute for Health and Healing.
This spring, the multidisciplinary coalition Minnesota Fair Care (MN Fair Care) has introduced the bill Patient Rights and Provider Non-Discrimination. The legislative session is short this year because of construction on the state capitol building. Coalition members felt that although the bill may not have time to pass committees, its introduction would provide focus to identify supporters for the 2016 election.
MN Fair Care Coordinator Michele Maiers, DC, MPH, PhD, Executive Director of Research and Innovation at Northwestern Health Sciences University, reported that others bills in the legislature that address high-cost pharmacy and high-deductible plans “are getting unprecedented attention this session and set us up well to make provider non-discrimination and patient access a campaign issue this summer/fall.”
In the meantime, the bill has attracted six sponsors in the state house of representatives and five in the state senate.
The MN Fair Care bill addresses tactics that insurers have used to exclude providers in the past by declaring a licensed discipline “not medically necessary, not clinically efficacious, or experimental, solely to deny services.” It is also designed to fill the enforcement hole so pronounced in the ACA’s Section 2706. Unambiguously, its “Enforcement” paragraph reads thus:
“Noncompliance with this section shall result in suspension of a plan participating in any state public health program….”
MN Fair Care is an example of a coalition whose members come from a variety of professions.  Elsewhere, such as in Oregon and Rhode Island, individual state professional associations have introduced or are working to develop bills that support their single profession but are modeled on the non-discrimination language and intent of Section 2706:
- In Vermont, People for Acupuncture reports interest in its bill, in part because it may complement another bill meant to address the state’s serious opioid addiction epidemic.
- In New Hampshire, a bill has been introduced that would elevate the coverage prospects of LMTs.
- Even in Rhode Island, which passed its Section 2706-like bill in 2015, the state acupuncture society is offering a bill to add substance to the protections for its professionals.
In New Mexico, a multidisciplinary coalition was formed by the state insurance superintendent to study the questions of discrimination and network adequacy, as a precursor to any potential legislative remedies.
In Illinois, Iowa, New Jersey, and West Virginia, we are seeing integrative provider professional associations start the process of replicating the successes in Oregon and Rhode Island and consider their own prospects.
While HHS considers the evidence of discrimination as presented by AANP, it may well start to receive similar evidence from the states where advocates are at work assembling patient and provider stories of reimbursement denied.
Taylor manages the website http://www.covermycare.org, which tracks compliance with Section 2706 in the states as part of its information and engagement mission.
 In March 2014, the Departments published a Request for Information seeking comments on all aspects of interpretation of Section 2706(a). More than 1,500 were received; they have not yet been made public.
 The Penny George Institute for Health and Healing has developed essential and telling financial data over the course of a decade on the cost benefits of integrative treatments for pain and other conditions and has assisted large companies with implementation of integrative care options.
 Coalition members represent state associations of acupuncturists, massage therapists, physical therapists, naturopathic physicians, chiropractors, occupational therapists, registered nurses, and podiatrists, as well as the patient-based State Pain Policy Advocacy Network.