August 26, 2013

Recent news reports have raised concerns about proposed legislation that would repeal provider anti-discrimination language added to the Public Health Service Act (PHSA) by the Affordable Care Act (ACA). Currently,the PHSA stipulates that insurers "shall not discriminate with respect to participation under the plan or coverage against any health care provider whois acting within the scope of that provider's license or certification under applicable State law." The section clarifies that this does not "require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer," and plans may vary payment based on quality performance.

HR 2817 would remove this anti-discrimination language from the PHSA.  As of this writing, the bill, introduced on July 24, 2013, has zero cosponsors, nor does companion legislation exist in the Senate.  Unfortunately, seven medical specialty societies, including ACOG, have written to Rep. Andy Harris, the author of the bill (and a physician), supporting his bill.

In coalition with twelve other organizations, ACNM has actively 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 of this legislation passing.

The greater concern is that the Departments of Labor, Health and Human Services and the Treasury have jointly issued an FAQ addressing the anti-discrimination language in the law. The Departments indicate that they have no plans to issue regulations implementing this part of the law, as they consider it self-implementing. They then go on to say, among other thing, that "This provision does not require plans or issuers to accept all types of providers into a network."  This language could potentially be read to indicate that plans can exclude all providers of a given type from their network, which would be a serious problem.

The coalition has also worked with Senator Harkin, the original sponsor of the anti-discrimination language, to require the Departments to clarify this language.  Senator Harkin recently inserted language into a Senate Appropriations bill report stating that the FAQ does not reflect the intent of Congress and directing the Departments to correct the language of the FAQ within 30 days of enactment. The ultimate fate of this appropriations bill is yet to be determined, although it has been passed out of committee.

ACNM will be discussing with its coalition the option of sending a strongly worded letter to the Departments objecting to the language of its FAQ and requesting that it adhere to the language of the law, as articulated by Sen. Harkin. We will report on events as they unfold.