ACA Provider Non-Discrimination Debate Continues

Published: June 30, 2014

Despite a January 1, 2014 effective date for “provider non-discrimination” language in the Affordable Care Act, debate continues on the proper meaning of the clause and state enforcement is lacking.

Section 2706(a) of the Public Health Service Act, as added by section 1201 of the Affordable Care Act (ACA), applies to insurers participating in the health insurance exchanges created under the ACA. It states that “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.”

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 FAQ because it allows health plans to continue the very discriminatory practices that the provider non-discrimination clause in the ACA was intended to stop.

In March, 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 joined with the Coalition for Patients’ Rights – a Washington, D.C.-based coalition of more than 35 organizations formed to ensure that the growing needs of the American health system can be met and that patients everywhere have access to quality health care providers of their choice – in commenting to the agencies on behalf of all CPR members in favor of an interpretation that would require health plans to contract with the full range of providers working within the scope of their license.

AORN also submitted comments to the agencies on behalf of nursing and RNFAs, noting that despite the January 1, 2014 implementation date, AORN’s RNFA members have not experienced 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 have experienced an increase in denials from private insurers and report receiving more denials than paid claims in this first half of 2014.

One of the key recommendations in the Institute of Medicine’s 2010 report, The Future of Nursing: Leading Change, Advancing Health, is that scope of practice barriers should be removed to allow nurses to work for the full extent of their education and training.  Scope of practice restrictions often take the form of licensing regulations, but they also exist in public and private reimbursement and credentialing policies. In addition to contradicting the clear intent of the Affordable Care Act, the current lack of enforcement of true provider non-discrimination against health plans and insurers creates a scope of practice barrier wholly inconsistent with the IOM’s Future of Nursing report.