Federal Law Prohibits Group Health Plans from Discriminating Against Providers

Under current federal law, group health insurance plans are prohibited from discriminating against any health care provider acting within the scope of her license or certification. The so-called "Harkin Amendment," passed as part of the Patient Protection and Affordable Care Act, created Section 2706(a) of the Public Health Service Act. It provides that:

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. This section shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer. Nothing in this section shall be construed as preventing a group health plan, a health insurance issuer, or the Secretary from establishing varying reimbursement rates based on quality or performance measures.

Section 2706(a) is codified at 42 U.S.C. § 300gg-5(a). It is also incorporated into the group health plan requirements of the Employee Retirement Income Security Act ("ERISA") by 29 U.S.C. § 1185d.

The statute prohibits discrimination against providers with respect to both network participation and coverage. That means that insurance companies that issue or administer group plans cannot categorically exclude providers from their networks based on provider type. It also means services that are covered when performed by one type of provider must be covered when provided by other types (so long as the services in question are within the scope of the providers' licenses).

Of course, Section 2706(a) does not define the term "discriminate," and there remains some confusion over its precise meaning.  The US Department of Labor ("DOL") is currently seeking public comment on the subject, after the Senate Appropriations Committee (of which Sen. Harkin is a member) criticized an earlier FAQ on Section 2706(a) issued by the DOL. One would expect that the DOL will issue additional guidance once the comment period expires on June 10, 2014.

The Maul Firm is currently investigating potential violations of Section 2706(a) by various insurance carriers.