07/15/2022

Section 2706(a): A Unique Opportunity to Ensure Patient Access to Chiropractic

A Major Tool Against Provider Discrimination on the Horizon!

As part of the Affordable Care Act (AKA “Obamacare”), Congress passed Section 2706(a), titled “Nondiscrimination in Health Care.” In relevant part, Section 2706(a) 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...”

Until now, Section 2706(a), while enshrined in federal law, has not been enforced at either the federal or state level. But change is on the horizon, and a major tool against provider discrimination will soon be available to chiropractors across Michigan. This FAQ document will serve as a primer on Section 2706(a) and seek to answer some questions regarding 2706(a).

Q: What Exactly Does Section 2706(a) Do?

A: According to the ACA, Section 2706(a) “establishes federal non-discrimination protections for providers acting within the scope of their licensure in terms of participation and reimbursement under health insurance and group health plans.” Basically, Section 2706(a) prohibits discrimination in terms of coverage, participation, and payment, based on the type of provider.

Q: What Does Section 2706(a) NOT Do?

A: Section 2706(a) does not:

• Require health plans or insurance issuers to accept any willing provider into their network
• Prevent a plan or issuer from establishing varying reimbursement rates, but only when based on quality or performance measures

Q: What Plans Are Covered by Section 2706(a)?

A: The nondiscrimination provision applies to:

• Group Health Plans
• Health insurance issuers offering group or individual health insurance coverage
  • This includes any self-insured plans (ERISA), administered by large companies.

Q: What Plans Are NOT Covered by Section 2706(a)?

A: Section 2706(a) does not apply to:

• “Grandfathered” plans (plans that were in existence as of January 1, 2014, and have remained basically the same since. As time moves forward and changes are made to these plans, fewer and fewer of these plans remain.)
• Medicare or state Medicaid programs
• TRICARE (health care program for uniformed service members, retirees, and their families)
• Workers’ Compensation
• Auto No-Fault PIP benefits

Q: Who Is Responsible for Enforcing Section 2706(a)?

A: The individual states, most likely through their Department of Insurance or whatever entity governs insurance in that state.

However, if a state fails to “substantially enforce” the law, the federal government “shall enforce” Section 2706(a). As of now, the states are not enforcing 2706(a), and the federal government is taking the beginning steps of enforcement, after Congress directed the Secretary of Health and Human Services, the Secretary of Labor, and the Secretary of the Treasury “to issue a final rule implementing the protections of section 2706(a)” in the Consolidated Appropriations Act of 2021.

Q: Section 2706(a) has been part of federal law for years. What’s different now?

A: In 2020, as part of a larger bill addressing surprise billing practices, Congress passed and President Trump signed into law a provision requiring the U.S. Departments of Health and Human Services, Labor, and the Treasury “to issue a final rule implementing the protections of section 2706(a).” The first step in the process of creating regulations enforcing 2706(a) came at a January 2022 “Listening Session” in which the insurance industry, despite evidence presented to the contrary, argued that enforcement of 2706(a) is unnecessary. Now, it is up to chiropractors and other non-MD/DO providers to provide the agencies with specific examples of provider discrimination.

Q: Is There a Timeline for Enforcement of Section 2706(a)?

A: The regulatory process is still at an early stage. The law states: “Not later than January 1, 2022, the Secretary of Health and Human Services, the Secretary of Labor, and the Secretary of the Treasury shall issue a proposed rule implementing the protections of section 2706(a)…” Obviously, this deadline has come and gone, and no proposed rule has been issued.

At the “Listening Session,” the agencies indicated they will be reaching out for comments before they issue such a rule. After the issuance of the proposed rule, the law requires the agencies to consider public comments for a period of 60 days. Then, no later than six months after the end of the comment period, a final rule shall be issued.

Q: What Are Some Possible Examples of What Would Be Considered Discrimination Under Section 2706(a)?

A: According to ACA, examples of potential forms of provider discrimination under Section 2706(a) could include:

• A plan or insurer pays a DC less than another provider for the same covered service and the payment differential is not based on a legitimate quality or performance measure
• A plan or insurer develops a benefit structure wherein there is a chiropractic/spinal manipulation benefit, however, the benefit is only payable when the services are rendered by an MD or DO, but not by a DC
• A plan or insurer refuses to permit DCs to participate as plan providers for services within their scope of practice
• A plan or insurer applies credentialing standards for DCs not applied to other providers for the same covered services.
• Chiropractic care often involves physical therapy modalities. Physical therapy is paid differently depending on whether it is billed by an inpatient facility or an outpatient facility. Differences in payment that exist simply due to format of reimbursement (e.g., DRG vs. fee for service) are understandable, but the same service being reimbursed differently between provider types in similar settings is a violation of 2706(a).
• Payers are changing policies to bundle services in preparation for moving away from fee for service. However, rather than create a combined fee, they simply eliminate one fee and pay for the other. This is not in keeping with the calculation of relative values. In other words, chiropractic manipulative treatment may be bundled with manual therapy and providers have been notified that no reimbursement will be made for manual therapy whatsoever when these services are performed together, regardless of the modifier used. These limitations are not applied to other provider types and are a violation of 2706(a).
• Inordinately high deductible and copay levels that result in driving patients away and toward more costly forms of care can be a violation of 2706(a) if applicable to DCs only.