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Taylor Walsh: CoverMyCare Report on States Legislative Action on Non-Discrimination in Healthcare PDF Print E-mail
Written by John Weeks   

Taylor Walsh: CoverMyCare Report on State Legislative Action for Non-Discrimination in Healthcare (Section 2706)

Taylor Walsh
Longtime Integrator columnist Taylor Walsh conceived and led development of the Integrative Healthcare Policy Consortium's consumer-focused CoverMyCare campaign.
Walsh is a writer and consultant working out of the Beltway. The goal is to help consumers partner with practitioners to drive efforts to get payers to meet the intent of the Non-Discrimination in Healthcare provision (Section 2706) of the Affordable Care Act. While many people are throwing their hands up in frustration, it is clear from this report that real work is under way in multiple states to shift access as Section 2706 mandates. Walsh shares legislative activity in California, Hawaii, New Mexico, Rhode Island and  Minnesota.

This campaign is grassroots, and that means you. For instance: CoverMyCare welcomes the stories of other patients and providers like Natalie, below, who would like to share their experiences coping with reimbursement in the context of Section 2706.  A simple form is available on the campaign's page "Share Your Story."  The campaign will soon need new financial partners. Got any ideas?

State Legislation Piggybacks on Section 2706

  Taylor Walsh
Director, CoverMyCare
Consultant, Entrepreneur and Writer on Digital Media & Integrative Health,Washington, D.C.
Integrative Health & Wellness Strategies

Twitter: @taylorw

Leading the campaign for non-discrimination
Since we opened the States section on, we have been compiling contact information about officials in each state, about groups at work advancing the purpose of Section 2706, and summaries of current initiatives. 

It is too early to say how new state-centered legislative initiatives are going to fare in the spring-through-fall state sessions, but clearly the utter lack of compliance with the federal law has inspired activists in the states. In most cases, the language of proposed or introduced bills borrows directly from Section 2706 of the ACA.

California:  The California Chiropractors Association developed a bill with assembly member Edwin Chau,  Assembly  Bill 41.  "AB 41 will codify into California statute non-discrimination language identical to that contained in Section 2706 (a) of the Patient Protection and Affordable Care Act (provider non-discrimination). Specifically, this measure would prohibit a health care service plan or health insurer from discriminating against any health care provider who is acting within the scope of that provider's license or certification."

The bill will add provisions to the state's existing Health and Safety and Insurance codes.

Hawaii: Senate Bill 1217, introduced Jan. 28: "The legislature concludes that the ability for patients to choose the licensed provider of their choice is integral to the intended full implementation of the Affordable Care Act and is an embodiment of the federal government's goals of better access, increased cost efficiency, and enhanced quality of health care."

This version of the bill focuses on applying the provisions of 2706 to naturopathic physicians; the initial language did not address specific disciplines.  This focus on NDs may be due to existing protections for acupuncture and chiropractic providers.  The bill was passed out of its first committee and will be further considered through March.

New Mexico: Senate Bill S-190 also repeats the language of 2706.  Because the bill includes all licensed providers, it would also eliminate existing provisions that had been created in previous years on behalf of individual disciplines.

Rhode Island:  Bill H-5046 was introduced in early January by state Rep. Joseph McNamara, but has been held in committee for further study.

ImageMinnesota: the multidisciplinary practitioner and academic group Minnesota Provider Coalition has developed legislation that may be introduced in the current session that it has made available in a white paper, available here. In the case of Minnesota, at least, the legislative language would include an element that the federal law lacks and has been criticized for: enforcement.   Minnesota's bill language states that non-compliance would result " suspension of plan participation in state public health programs." 

Follow updates on these and other States initiatives at CoverMyCare here.

The emergence of state-based actions (possibly also including class actions suits) reflects the yearlong absence of compliance by state insurance commissioners and thus by the insurers they regulate.

The primary culprit for this recalcitrance remains the FAQ issued by HHS in the spring of 2013 that managed to obscure the intent of the legislation.  Last spring in a response to an HHS "Request for Information on Non-Discrimination," one insurance company interpreted the legislation as effectively making no difference to their marketing and reimbursement operations.   This is apparently a universally held interpretation among the incumbent players, and is exactly the reverse of what former Sen. Tom Harkin had in mind when he wrote Section 2706.

As is widely known, shortly after the 2013 FAQ on 2706 was distributed, Harkin as chair of the Senate Appropriations Committee rebuked its language and effect, and directed that CMS deliver a replacement to the committee by last Nov. 3 2014.  To date there has been no response, and, in the wake of the change in committee leadership, no one is holding breath waiting to see it.

The practical effect of this interpretation can be seen in the experiences of patients and practitioners.   One example: Natalie Weintraub, LMT who practices in Oregon, recently provided CoverMyCare with a history of her efforts over at least a year to obtain reimbursement for her patients through the Insurance Division of the Oregon Dept. of Consumer and Business Services.  One insurer explained in its response to the department: " On April 29, 2013, the United Stated Department of Labor clarified PHS Act 2706 (i) 'does not require plans of issuers to accept all types of providers into a network,' and (ii) 'does not govern provider reimbursement rates.'." 

Sponsor of CoverMyCare
Additionally the insurer noted: "The massage therapy must be done in conjunction with other treatment (e.g. chiropractic, physical, or occupational therapy).  This exclusion applies equally to any type of provider whose scope of practice includes massage therapy."

This view bypasses the intent of Section 2706 to prevent exclusion from reimbursement entire classes of providers.  A review of Oregon's list of Essential Health Benefits indeed shows that massage therapy is not covered as a "rehabilitative or habilitative service" among the state's insurers, with the exception of Kaiser's HMO, with 20 visits/year.

CoverMyCare welcomes the stories of other patients and providers like Natalie who would like to share their experiences coping with reimbursement in the context of Section 2706.  A simple form is available on our page "Share Your Story")

A picture of national discontent has emerged in the wake of a year's worth of official inaction on Section 2706: at federal and state levels.   As activists develop state-based alternatives, CoverMyCare will act as a clearinghouse for sharing strategies, model legislative language, white papers and other resources.   


Comment: As the Policy section of the (not yet published March Integrator Round-up will show, IHPC and this CoverMyCare may finally be gaining the bandwidth to mount the breadth of a campaign this merits. Credit Bastyr University and the American Massage Therapy Association for their grants that kicked off the campaign, and allowed this report. Who will step up to financially partner in this work next?


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