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Provider Non-Discrimination Update for RNFAs

Publish Date: July 8, 2015

On May 26, 2015, the U.S. Departments of Treasury, Labor, and Health and Human Services issued an updated Frequently Asked Question addressing the provider non-discrimination language in Section 2706(a) of the Affordable Care Act (ACA). The new FAQ offers little reassurance to providers that they must be included in state health plans, and it protects insurers acting in good faith from any enforcement action.

Section 2706(a) of the Public Health Service Act, as added by section 1201 of the ACA, applies to insurers participating in the health insurance exchanges created under the ACA. It states "a group health plan and a health insurance issuer offering group or individual health insurance 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." However, the same section then provides that it 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." Despite a January 1, 2014 effective date for this “provider non-discrimination” language, debate continues on the proper meaning of the clause and state enforcement is lacking.

On April 29, 2013, the government published a Frequently Asked Question on the topic indicating that the Act does not require plans or insurers to accept all types of providers into a network and also does not govern provider reimbursement rates. Many in the non-physician community, including advanced practice registered nurses, chiropractors, naturopathic physicians, physical therapists, and AORN on behalf of its APRN and RNFA members, were disappointed in the guidance in the 2013 FAQ because it allowed health plans to continue the very discriminatory practices that the provider non-discrimination clause in the ACA was intended to stop.

In March 2014, the U.S. Departments of the Treasury, Labor, and Health and Human Services issued a Request for Information regarding the provider non-discrimination clause, with comments due June 10, 2014. AORN submitted comments to the agencies on behalf of nursing and RNFAs, noting that despite the January 1, 2014 implementation date, AORN’s RNFA members did not experience any increase in private insurers willing to credential, contract with, and reimburse RNFAs for their services as a first assistant at surgery. In fact, many RNFAs experienced an increase in denials from private insurers and report receiving more denials than paid claims in this first half of 2014.

Despite receiving over 1,500 comments in response to the March 2014 Request for Information, the agencies removed the problematic 2013 FAQ, substituting the 2015 FAQ which simply provides that insurers and group health plans are required to comply reasonably and in good faith with the terms of Section 2706(a). The 2015 FAQ provides that complaints should be directed to state insurance regulators.

Many provider groups disappointed in the federal agencies’ response have sought enforcement assistance from state insurance regulators and help from state legislatures. For example, Oregon recently enacted its own state law mirroring the non-discrimination provision in the ACA. Rhode Island has a similar bill awaiting the governor’s signature.

AORN will continue to monitor this issue at both state and federal levels. If you have any questions about this initiative or other issues that may affect RNFA practice, please contact the AORN government affairs department at [email protected].