Congress strengthens Harkin law, boosts nondiscrimination

On Jan. 16, 2014, lawmakers in the Senate and House took decisive steps to uphold full implementation of the Harkin law, the landmark provider nondiscrimination law backed by the AOA.

Sen. Tom Harkin (D-Iowa) and Rep. Peter Welch (D-Vt.) had launched a campaign in support of this Affordable Care Act provision (otherwise known as PHSA Section 2706) in their respective chambers. Opposed by organized medicine and the health insurance industry, "Section 2706 seeks to end decades of insurer discrimination against ODs by assuring greater patient access to and full recognition of optometrists by health plans," said Roger Jordan, O.D., chair, AOA Federal Relations Committee.

Ultimately, the lawmakers deemed it necessary to boost Section 2706. The agency charged with implementing the provision issued sub-regulatory guidance—in the form of frequently asked questions, or FAQs—last year. However, the AOA found that guidance misleading, inaccurate and threatening to the foundation of the entire provision, Dr. Jordan said. Some states had begun to implement Section 2706 based on the guidance in a way that would allow insurers to continue to discriminate against ODs and their patients.

New language clarifies intent

"Section 2706 seeks to end decades of insurer discrimination against ODs."

Sen. Harkin, who chairs the Senate Appropriations Committee's Subcommittee on Health, championed appropriations language directing federal agency officials to scrap the Section 2706 FAQ guidance and make necessary corrections within 30 days. The language was ultimately included in the Consolidated Appropriations Act of 2014, which cleared both the House and Senate by wide margins and signed into law by President Obama.

The original guidance had been advising insurers that Section 2706 allowed them "to exclude from participation whole categories of providers operating under a state license or certification," the new appropriations language stated. "In addition, the FAQ advises insurers that section 2706 allows discrimination in reimbursement rates based on broad 'market considerations' rather than the more limited exception cited in the law for performance and quality measures."

Section 2706's intent was to prohibit this type of discrimination, the language said. "The Committee believes that insurers should be made aware of their obligation under section 2706 before their health plans begin operating in 2014. The Committee directs HHS to work with the Department of Labor and Treasury to correct the FAQ to reflect the law and congressional intent within 30 days of enactment of this act."

Agency head grilling

On the other side of Capitol Hill, Rep. Welch raised similar issues with the top agency official in charge of implementing Section 2706. At a hearing of the House Energy and Commerce Committee's Investigation and Oversight Subcommittee, Rep. Welch shared his concerns with Gary Cohen, who heads the federal Center for Consumer Information and Insurance Oversight (CCIIO).

Among them were how the CCIIO had interpreted the nondiscrimination provision and the impact that its guidance could have on consumers and health care providers.

"The guidance could lead to discrimination against some providers by allowing health insurers to continue the very abuses that the statute aims to stop," Rep. Welch said. He then asked Cohen for his plans to address these issues and to ensure that the statute was implemented as Congress intended.

January 21, 2014

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