Your Help is Needed to Put an End to Provider Discrimination

Provider Non-Discrimination: Sec. 2706 of the Public Health Act

Section 2706(a) of the Public Health Service Act establishes federal non-discrimination protections for providers acting within the scope of their licensure in terms of participation and reimbursement under health insurance and group health plans, specifically group health plans and health insurance issuers offering group or individual health insurance coverage. A group health plan is any employee welfare benefit plan to the extent that the plan provides medical care to employees or their dependents directly or through insurance, reimbursement, or otherwise including both insured and self-insured plans. A health insurance issuer is any insurance company, insurance service, or insurance organization (including a health maintenance organization) which is licensed to engage in the business of insurance in a State.

The law provides that the various States may enforce the provisions of 2706(a) and if the states fail to do so, the federal government “shall enforce” Section 2706(a) when a “State has failed to substantially enforce” the law.  Despite the law’s provisions, the states have not enforced the law and the federal government has not followed the law’s clear requirement to do so.

As a result, ACA and its PARCA coalition partners pushed for enactment Section 108 of the Consolidated Appropriations Act, 2021 which requires the applicable federal agencies “to issue a final rule implementing the protections of section 2706(a).”

The first step of the regulatory process occurred at a “Listening Session” hosted by the departments of Labor, HHS, and the Treasury on January 19, 2022. Representatives of the PARCA coalition, including Tom Daly for ACA, outlined general instances of provider discrimination in terms of both reimbursement and participation, Representatives of the insurance industry presented argued that the law does not affect any of their current provider reimbursement or participation procedures. The next step of the process is to provide the agencies with more specific instances of provider discrimination and to present a legal analysis to counter the claims of the insurance industry.

The agencies indicated they are at an early stage of the regulatory process and that they will be reaching out for more comments before the issuance of a proposed rule. The law requires the agencies to issue a proposed rule and consider public comments for a period of 60 days after the date of such issuance. The law then requires: “Not later than 6 months after the date of the conclusion of the comment period, the Secretaries shall issue a final rule implementing the protections of section 2706(a).”

Examples of Provider discrimination as promulgated by Sec. 2706(a):

2706(a) prohibits discrimination based on a provider licensure in terms of (a) reimbursement of covered services which are within the provider’s state authorized scope of practice and (b) participation in any plan or insurance program.  The following are examples of some, but not all, forms of provider discrimination applicable under Sec. 2706(a):

  • A plan or insurer does not pay doctors of chiropractic (DCs) for a covered plan service which is within the scope of practice of the DC.
  • A plan or insurer pays a DC less than another provider for the same covered service and the payment differential is not based on a legitimate quality or performance measure.
  • A plan or insurer develops a benefit structure wherein there is a chiropractic/spinal manipulation benefit, however, the benefit is only payable when the services are rendered by an MD or DO, but not by a DC.
  • A plan or insurer refuses to permit DCs to participate as plan providers for services within their scope of practice.
  • A plan or insurer applies credentialing standards for DCs not applied to other providers for the same covered services.
  • Chiropractic care often involves physical therapy modalities. Physical therapy is paid differently depending on whether it is billed by an inpatient facility or an outpatient facility. Differences in payment that exist simply due to format of reimbursement (e.g., DRG vs. fee for service) are understandable, but the same service being reimbursed differently between provider types in similar settings is a violation of 2706(a).
  • Payers are changing policies to bundle services in preparation for moving away from fee for service, however, rather than create a combined fee, they simply eliminate one fee and pay for the other.  This is not in keeping with the calculation of relative values.  In other words, chiropractic manipulative treatment may be bundled with manual therapy and providers have been notified that no reimbursement will be made for manual therapy whatsoever when these services are performed together, regardless of the modifier used.  These limitations are not applied to other provider types and are a violation of 2706(a).
  • Inordinately high deductible and copay levels that result in driving patients away and toward more costly forms of care can be a violation of 2706(a) if applicable to DCs only.

Scenarios and plans where Sec. 2706(a) does not apply:

2706(a) does not prohibit discrimination in terms of varying reimbursement rates based on quality or performance measures.

2706(a) is also not an “any willing provider law” which requires a plan to accept as participants all members of a particular class of provider, but it does prohibit a plan from not accepting a provider as a participating provider of covered services based solely on that provider’s license.

2706(a) does not apply to:

  • Medicare
  • State Medicaid programs
  • Tricare
  • Medical Payment Benefits (Med Pay) provisions under automobile liability insurance