August 26, 2013
Recent news reports have raised concerns about proposedlegislation that would repeal provider anti-discrimination language added tothe Public Health Service Act (PHSA) by the Affordable Care Act (ACA). Currently,the PHSA stipulates that insurers “shall not discriminate with respect toparticipation under the plan or coverage against any health care provider whois acting within the scope of that provider’s license or certification underapplicable State law.” The sectionclarifies that this does not “require that a group health plan or healthinsurance issuer contract with any health care provider willing to abide by theterms and conditions for participation established by the plan or issuer,” andplans may vary payment based on quality performance.
HR 2817 would remove this anti-discrimination languagefrom the PHSA. As of this writing, thebill, introduced on July 24, 2013, has zero cosponsors, nor does companionlegislation exist in the Senate.Unfortunately, seven medical specialty societies, including ACOG, havewritten to Rep. Andy Harris, the author of the bill (and a physician),supporting his bill.
In coalition with twelve other organizations, ACNM hasactively opposed this legislation, sending a letter to the Energy and CommerceCommittee in mid-August outlining our concerns.At this point, we do not believe that there is any realistic chance ofthis legislation passing.
The greater concern is that the Departments of Labor,Health and Human Services and the Treasury have jointly issued an FAQaddressing the anti-discrimination language in the law. The Departments indicate that they have noplans to issue regulations implementing this part of the law, as they considerit self-implementing. They then go on tosay, among other thing, that “Thisprovision does not require plans or issuers to accept all types of providersinto a network.” This language couldpotentially be read to indicate that plans can exclude all providers of a giventype from their network, which would be a serious problem.
The coalition has also worked with Senator Harkin, theoriginal sponsor of the anti-discrimination language, to require theDepartments to clarify this language. Senator Harkin recently inserted languageinto a Senate Appropriations bill report stating that the FAQ does not reflectthe intent of Congress and directing the Departments to correct the language ofthe FAQ within 30 days of enactment. Theultimate fate of this appropriations bill is yet to be determined, although ithas been passed out of committee.
ACNM will be discussing with its coalition the option ofsending a strongly worded letter to the Departments objecting to the languageof its FAQ and requesting that it adhere to the language of the law, asarticulated by Sen. Harkin. We willreport on events as they unfold.