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.Continue Reading Departments Reverse Course on Implementation of Affordable Care Act Provider Contracting Provision