HHS reverses course on Harkin Law guidance

June 4, 2015
Major advocacy win removes damaging HHS FAQ.

A federal agency's correction of its erroneous sub-regulatory guidance on the national provider nondiscrimination law represents a hard-fought AOA advocacy victory years in the making.

"Millions more Americans are gaining access to their local doctor of optometry because of a new federal law we fought for."

The U.S. Department of Health and Human Services (HHS) posted online a revised FAQ on May 26, superseding its previous guidance that led some states and health plans to implement the provider nondiscrimination law—more commonly known to AOA members as the Harkin Law—in a way not intended by Congress.

That previous guidance, issued by HHS on April 29, 2013, strayed from the intent of Section 2706(a) of the Public Health Service (PHS) Act that barred discrimination against providers in participation and coverage based on licensure, and suggested insurers could avoid compliance by relying on so-called medical management techniques or market reimbursement standards.

Now, according to the revised FAQ, HHS has stopped embracing those loopholes and will take enforcement action against any group health plan or health insurance issuer that has failed to use "a good faith, reasonable interpretation of the statutory provision."

Removal of the previous guidance language may make it easier for states and third party advocates to grow the impact of the national provider nondiscrimination law, which AOA members fought so hard to enact.

Years-long fight for access

This revised guidance is the result of tireless efforts by AOA, state affiliates and countless members over the past two years to see HHS clarify the misleading language, and to protect the provision against threats from other groups, says AOA President David A. Cockrell, O.D.

"Organized medicine and some in the health insurance industry have never relented in their campaign targeting patient choice and access to local doctors of optometry," Dr. Cockrell says.

"For more than a half-decade, medicine and health insurers have joined forces to fight against AOA and the pro-access policies we champion. Together, they fought us as Congress drafted and later enacted the national provider nondiscrimination law, and they kept on fighting us—on the federal, state and third-party payer levels—to undermine the pro-patient law even before it was fully implemented."

AOA opposed the flawed FAQ from the start and built support in Congress to fix or remove the guidance. Ultimately, nearly 40 House and 14 Senate leaders—at the urging of the AOA—sent joint letters to the heads of HHS, and the Departments of Labor and Treasury.

In addition, Congress—with backing from the AOA and others—twice included report language attached to annual spending bills demanding that the agency scrap or fix the flawed FAQ. In its most recent action, lawmakers directed the agency to make the fixes or explain why it was actively defying Congress.

After this increased pressure from U.S. House and Senate members, HHS eventually issued a Request for Information, to which AOA members, state affiliates and others rallied to provide 1,514 responses.

While the agency did relent under pressure, the new FAQ also indicate that the new guidance would stand barring any further guidance.

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As proved by HHS' revision, advocacy on the part of AOA, state affiliates and members works even in the face of stiff opposition from organized medicine and some in the health insurance industry.

"Whether anti-optometry groups like it or not, millions more Americans are gaining access to their local doctor of optometry because a new federal law we fought for specifically targets the discriminatory and anti-competitive practices of health plans. And we'll continue our efforts in Washington, D.C., to ensure that continues," Dr. Cockrell says.

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