On May 26, 2015, the Departments of Health and Human Services, Labor, and the Treasury (Departments) released subregulatory guidance that, among other things, reversed previous guidance addressing provider nondiscrimination in health coverage. The Affordable Care Act added Section 2706 to the Public Health Service Act, 42 U.S.C. § 300gg-5, which states that plans and issuers of health 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,” but does not require a plan or issuer to contract with any willing provider. (Although Section 2706 itself is not an “any willing provider” statute, it does not preempt or otherwise impact the applicability of any state’s any willing provider law.) The Departments’ new frequently asked question (FAQ), available here, calls into question whether a plan or issuer would violate Section 2706 by declining to contract with certain types of providers.
The Departments had published guidance on April 29, 2013, available here, indicating that they would not promulgate regulations implementing Section 2706 because its language is “self-implementing,” and that plans and issuers should implement its requirements “using a good faith, reasonable interpretation of the law.” The guidance goes on to clarify that Section 2706 “does not require plans or issuers to accept all types of providers into a network” (emphasis added). Since Section 2706 became effective on January 1, 2014, plans and issuers have read this guidance to permit blanket exclusion types of providers, such as chiropractors, naturopathic physicians, and nurse practitioners, from provider networks. These exclusions have significantly limited the effect of Section 2706.
A few months later, in a Senate committee report on an appropriations measure, members of Congress opined that the guidance was contrary to the provision’s legislative intent.
The goal of this provision is to ensure that patients have the right to access covered health services from the full range of providers licensed and certified in their State. The Committee is therefore concerned that the FAQ document issued by [the Departments] on April 29, 2013, advises insurers that this nondiscrimination provision allows them to exclude from participation whole categories of providers operating under a State license or certification. In addition, the FAQ advises insurers that section 2706 allows discrimination in 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. The Committee believes that insurers should be made aware of their obligation under section 2706 before their health plans begin operating in 2014. 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.
S. Rep. No. 113-71 at 126 (Jul. 11, 2013). The Departments responded initially by issuing a request for information (RFI) to allow interested parties to comment on the policy. The House of Representatives restated the Senate’s dissatisfaction with the Departments’ guidance in December 2014, directing that the Departments “provide a corrected FAQ by March 3, 2016 or an explanation for ignoring congressional intent.”
The recent guidance from the Departments acknowledges the criticism of the 2013 guidance and withdraws the original FAQ, citing a “breadth of issues identified in the comments to the RFI.” The Departments have not replaced that FAQ with substantive guidance, but have committed to “not take any enforcement action against a group health plan, or health insurance issuer offering group or individual coverage . . . as long as the plan or issuer is using a good faith, reasonable interpretation” of Section 2706.
It is now unclear whether wholesale exclusion of certain types of providers would constitute a “good faith, reasonable interpretation” of the statute. The Departments previously considered that to be the prevailing interpretation and invited plans and issuers to rely upon it, but both chambers of Congress expressed disapproval, and the Departments withdrew the guidance supporting it. Until the Departments promulgate regulations or release definitive guidance, it will remain unclear whether plan and issuers may exclude certain allied health providers without violating Section 2706.