As most of you know, when the federal Patient Protection and Affordable Care Act (PPACA - Obamacare) was on the Senate side of Congress, Senator Tom Harkin of Iowa, a great friend of the chiropractic profession, drafted the "Harkin Amendment." The amendment, nondiscrimination language successfully lobbied for by a large coalition of health care provider organizations including the American Chiropractic Association, is Section 2706a:
Understanding the Language
The legislative intent of this language was to prohibit discrimination as it relates to participation, coverage and reimbursement. Not to discriminate against chiropractic physicians as per participation means insurers and health plans must contract with some chiropractors; they cannot exclude all chiropractors from their provider panels.
However, this provision is not an "any willing provider" law. Not to discriminate as per coverage means if a covered health service is within the scope of a chiropractic physician's license to provide and we provide that service, the insurers and health plans must reimburse us for that service. Varying reimbursement rates based on quality or performance measures means insurers and health plans cannot vary reimbursement based solely on the type of provider.
For example, insurers and health plans cannot pay chiropractic physicians less than medical physicians for the same covered service simply because we are chiropractic doctors and not medical doctors. However, if we do a better job, we could be paid more or receive an end-of-year bonus based on quality or performance measures, also referred to as paying for performance.
Problems With Enforcement
Enforcement of these federal nondiscrimination provisions has been an issue in all 50 states since Obamacare went into effect on Jan. 1, 2014. The trouble actually began back on April 29, 2013, when the CMS Center for Consumer Insurance Information and Oversight (CCIIO) issued seriously flawed guidance in the form of an FAQ (frequently asked questions) sent to all 50 state insurance commissioners. That flawed guidance stated, in part:
"This provision does not require plans or issuers to accept all types of providers into a network. This provision also does not govern provider reimbursement rates, which may be subject to quality, performance, or market standards and considerations."
This completely flipped the legislative intent and meaning of the participation and reimbursement provisions on their heads, leaving the door open for insurers and health plans to discriminate against doctors of chiropractic – exactly what Congress was attempting to prohibit. State insurance commissioners followed with this same flawed guidance on the state level, including here in Oregon.
Overcoming the Challenges: How We Did It Here in Oregon
Simultaneously during this time, the Republican members of Congress continued to attempt to repeal Obamacare and if successful, the provider nondiscrimination provisions found in Section 2706a. As a consequence, here in Oregon we went to then-Governor John Kitzhaber, MD, asking that he instruct the Oregon insurance commission to insert Section 2706a into Oregon state law so that even if Congress repealed Obamacare, the nondiscrimination provisions would still be enforceable under state law.
Governor Kitzhaber, who was very supportive of the chiropractic profession, agreed with Oregon passing House Bill 2468 in 2015, inserting Section 2706a into Oregon state law.
Tips to Succeed in Your State
1. Clear legislative intent: It is important to note the legislative intent must be clearly stated as your legislation is moving through your state legislature. Having a member state the legislative intent on the Senate or House floor when your bill is being considered has the most persuasiveness in the courts. (Here is an example)
2. Administrative rule-making: At the state level, this is another key tactic to further ensure that the legislative intent and meaning of your state law is clearly spelled out, allowing your state insurance division to enforce the law when insurers and health plans violate the law. In many states, insurers and health plans continue to play fast and loose when interpreting Section 2706a.
In some states, insurers have determined they will not reimburse chiropractic physicians for spinal manipulation; they only reimburse osteopaths for that service. Additionally, insurers in many states have refused to reimburse for many other covered services found in the state's benchmark plan, despite those services being within the scope of license of a chiropractic physician in that state.
In 2017, with the help of Oregon's current governor, Kate Brown, the Oregon Insurance Division, now called the Division of Financial Regulation, entered into administrative rule-making and we were successful in inserting the following Oregon Administrative Rule language as OAR 836-053-0012:
"In the administration of essential health benefits and the EHB base benchmark health benefit plan an insurer may not exclude services provided by a doctor of chiropractic medicine if the services are otherwise covered under the plan and the doctor of chiropractic medicine is acting within the scope of the provider's license."
This is a strategy you can use in your state to address the coverage piece of Section 2706a. If a covered health service is within the scope of license for a chiropractic physician in your state and you provide that service, the insurer must reimburse for that service.
As a more recent example here in my state, in September 2020, the Oregon Chiropractic Association again prompted the Oregon Division of Financial Regulation to enter into administrative rule-making, adding a minimum of 20 spinal manipulation visits to the state's benchmark plan. The rational for this was due to an obscure interpretation of Oregon's originally selected benchmark plan, the PacificSource Preferred Co-Deduct plan, which predated the passage of Obamacare. That plan listed "chiropractic" under "benefit," as if chiropractic were a singular service (spinal manipulation), rather than a profession with a broad scope of practice.
Varying reimbursement rates based on quality or performance measures is being addressed this coming Oregon legislative session, with proposed legislation that will clarify the original legislative intent and meaning of that language. Since the legislative history both at the congressional level and the state level is not clear, enough cannot be done to address this issue through administrative rule-making. The meaning and intent are the same for every state; insurers and health plans cannot pay varying reimbursement rates based solely on type of provider.
If Not Now, Then When?
Enforcement of the nondiscrimination provisions of Section 2706a must occur at the state level, as it has become abundantly clear the federal government is unwilling or unable to enforce these provisions; and litigation is simply too expensive and problematic. Dear colleagues, do not become overly frustrated with the legislative process. Stay the course, "never let 'em see you sweat," never get upset; keep smiling and keep working.
Click here for more information about Vern Saboe Jr., DC, DACAN, FICC, DABFP.