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EBSA Notices

Request for Information Regarding Provider Non-Discrimination   [3/12/2014]
[PDF]
Federal Register, Volume 79 Issue 48 (Wednesday, March 12, 2014)
[Federal Register Volume 79, Number 48 (Wednesday, March 12, 2014)]
[Notices]
[Pages 14051-14052]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-05348]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

DEPARTMENT OF LABOR

Employee Benefits Security Administration

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

[CMS-9942-NC]


Request for Information Regarding Provider Non-Discrimination

AGENCY: Internal Revenue Service, Department of the Treasury; Employee 
Benefits Security Administration, Department of Labor; Centers for 
Medicare & Medicaid Services, Department of Health and Human Services.

ACTION: Request for information.

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SUMMARY: This document is a request for information regarding provider 
non-discrimination. The Departments of Labor, Health and Human Services 
(HHS), and the Treasury (collectively, the Departments) invite public 
comments via this request for information.

DATES: Comments must be submitted on or before June 10, 2014.

ADDRESSES: Written comments may be submitted to HHS. Any comment that 
is submitted will be shared with the other Departments. Please do not 
submit duplicates. All comments will be made available to the public. 
Warning: Please do not include any personally identifiable information 
(such as name, address, or other contact information) or confidential 
business information that you do not want publicly disclosed. All 
comments are posted on the Internet exactly as received and can be 
retrieved by most Internet search engines. No deletions, modifications, 
or redactions will be made to the comments received, as they are public 
records. Comments may be submitted anonymously.
    You may submit comments in one of four ways (please choose only one 
of the ways listed):
    1. Electronically. You may submit electronic comments on this 
regulation to http://www.regulations.gov. Follow the ``Submit a 
comment'' instructions.
    2. By regular mail. You may mail written comments to the following 
address only: Centers for Medicare & Medicaid Services, Department of 
Health and Human Services, Attention: CMS-9942-NC, P.O. Box 8016, 
Baltimore, MD 21244-8016.
    Please allow sufficient time for mailed comments to be received 
before the close of the comment period.
    3. By express or overnight mail. You may send written comments to 
the following address only: Centers for Medicare & Medicaid Services, 
Department of Health and Human Services, Attention: CMS-9942-NC, Mail 
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
    4. By hand or courier. Alternatively, you may deliver (by hand or 
courier) your written comments only to the following addresses prior to 
the close of the comment period:
    a. For delivery in Washington, DC--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, Room 445-G, Hubert 
H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201
    (Because access to the interior of the Hubert H. Humphrey Building 
is not readily available to persons without Federal government 
identification, commenters are encouraged to leave their comments in 
the CMS drop slots located in the main lobby of the building. A stamp-
in clock is available

[[Page 14052]]

for persons wishing to retain a proof of filing by stamping in and 
retaining an extra copy of the comments being filed.)
    b. For delivery in Baltimore, MD--Centers for Medicare & Medicaid 
Services, Department of Health and Human Services, 7500 Security 
Boulevard, Baltimore, MD 21244-1850.
    If you intend to deliver your comments to the Baltimore address, 
call telephone number (410) 786-7195 in advance to schedule your 
arrival with one of our staff members.
    Comments erroneously mailed to the addresses indicated as 
appropriate for hand or courier delivery may be delayed and received 
after the comment period. For information on viewing public comments, 
see the beginning of the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: Beth Baum or Amy Turner, Employee 
Benefits Security Administration, Department of Labor, at (202) 693-
8335; Karen Levin, Internal Revenue Service, Department of the 
Treasury, at (202) 317-6846; Cam Moultrie Clemmons, Centers for 
Medicare & Medicaid Services (CMS), Department of Health and Human 
Services, at (410) 786-1565.
    Customer Service Information: Individuals interested in obtaining 
information from the Department of Labor concerning employment-based 
health coverage laws may call the EBSA Toll-Free Hotline at 1-866-444-
EBSA (3272) or visit the Department of Labor's Web site (http://www.dol.gov/ebsa). In addition, information from HHS on private health 
insurance for consumers can be found on the CMS Web site 
(www.cciio.cms.gov), and information on health reform can be found at 
http://www.HealthCare.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 2706(a) of the Public Health Service Act (PHS Act),\1\ as 
added by section 1201 of the Affordable Care Act, states 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.'' Section 2706(a) of the PHS 
Act does 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,'' and nothing in section 2706(a) of the PHS Act prevents ``a 
group health plan, a health insurance issuer, or the Secretary from 
establishing varying reimbursement rates based on quality or 
performance measures.''
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    \1\ PHS Act section 2706(a) also is incorporated into section 
715(a)(1) of the Employee Retiree Income Security Act (ERISA) and 
section 9815(a)(1) of the Internal Revenue Code (the Code). 
Accordingly, the Departments have concurrent jurisdiction over the 
implementation of PHS Act section 2706(a).
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    On April 29, 2013, the Departments issued a Frequently Asked 
Question (FAQ),\2\ that states that section 2706(a) of the PHS Act is 
applicable to non-grandfathered group health plans and health insurance 
issuers offering group or individual coverage for plan years (in the 
individual market, policy years) beginning on or after January 1, 2014 
and stated that until further guidance is issued, plans and issuers are 
expected to implement the requirements of section 2706(a) of the PHS 
Act using a good faith, reasonable interpretation of the law. The FAQ 
states that, for this purpose, to the extent an item or service is a 
covered benefit under the plan or coverage, and consistent with 
reasonable medical management techniques specified under the plan with 
respect to the frequency, method, treatment or setting for an item or 
service, a plan or issuer shall not discriminate based on a provider's 
license or certification, to the extent the provider is acting within 
the scope of the provider's license or certification under applicable 
state law. The FAQ also states that section 2706(a) of the PHS Act does 
not require plans or issuers to accept all types of providers into a 
network and also does not govern provider reimbursement rates, which 
may be subject to quality, performance, or market standards and 
considerations.
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    \2\ See FAQs about Affordable Care Act Implementation Part XV, 
available at http://www.dol.gov/ebsa/faqs/faq-aca15.html and http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs15.html.
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    The Senate Committee on Appropriations Report dated July 11, 2013 
(to accompany S. 1284) \3\ states that section 2706 of the PHS Act 
``prohibits certain types of health plans and issuers from 
discriminating against any healthcare provider who is acting within the 
scope of that provider's license or certification under applicable 
State law, when determining networks of care eligible for 
reimbursement. The goal of this provision is to ensure that patients 
have the right to access covered health services from the full range of 
providers licensed and certified in their State. The Committee is 
therefore concerned that the FAQ document issued by HHS, DOL and the 
Department of Treasury on April 29, 2013, advises insurers that this 
nondiscrimination provision allows them to exclude from participation 
whole categories of providers operating under a State license or 
certification. In addition, the FAQ advises insurers that section 2706 
allows discrimination in the reimbursement rates based on broad `market 
considerations' rather than the more limited exception cited in the law 
for performance and quality measures. Section 2706 was intended to 
prohibit exactly these types of discrimination. 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 DOL and the Department of Treasury to correct the 
FAQ to reflect the law and congressional intent within 30 days of 
enactment of this act.'' \4\
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    \3\ S. Rep. No. 113-71, at 126 (2013).
    \4\ S. Rep. No. 113-71, at 126 (2013). Additionally, in Title I 
of the report, regarding the Department of Labor Employee Benefits 
Security Administration, the Committee ``directs the Department to 
work with HHS and the Department of the Treasury to revise their 
joint FAQ regarding section 2706 of the ACA, as explained in the HHS 
title of this report.'' S. Rep. No. 113-71, at 27 (2013).
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II. Solicitation of Comments

    Pursuant to this report, the Departments are requesting comments on 
all aspects of the interpretation of section 2706(a) of the PHS Act. 
This includes but is not limited to comments on access, costs, other 
federal and state laws, and feasibility.

    Signed at Washington, DC, this 6th day of March, 2014.
Victoria A. Judson,
Division Counsel/Associate Chief Counsel, Tax Exempt and Government 
Entities, Internal Revenue Service, Department of the Treasury.
    Signed at Washington, DC, this 6th day of March, 2014.
George H. Bostick,
Benefits Tax Counsel, Department of the Treasury.
    Signed this 5th day of March 2014.
Phyllis C. Borzi,
Assistant Secretary, Employee Benefits Security Administration, 
Department of Labor.
    Dated: March 6, 2014.
Marilyn Tavenner,
Administrator, Centers for Medicare & Medicaid Services.
    Dated: March 6, 2014.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.
[FR Doc. 2014-05348 Filed 3-7-14; 4:15 pm]
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