BY KATHERINE BOWLES, RN, ESQ.
Hanson Bridgett LLP, Los Angeles, CA
This following article describes the Provider Non-Discrimination Law, its potential violation by CIGNA in approximately 36 states and the legal battle that could potentially ensue.
THE AFFORDABLE CARE ACT’S ANTIDISCRIMINATION LAW: AN OVERVIEW
Since January 2012, the Affordable Care Act (ACA) has prohibited insurance plans, insurance providers and others from discriminating against providers who are acting within the full scope of their license or certification under applicable state law.1 In 2021, Congress, acting through Section 108 of the Consolidated Appropriations Act (CAA), required the U.S. Department of Labor, the U.S. Department of Health & Human Services and the U.S. Treasury (the Departments) to issue a notice of proposed rulemaking, followed by a final rule, to fully implement section 2706(a) of the Public Health Service Act (PHSA).2 In response, the Departments indicated that the statutory language is self-executing and may be enforced without further regulatory action.3 This means that the Provider Non-Discrimination Law is enforceable in any state where an insurer, a group or individual health plan or other payors impose discriminatory payment policies.
The Provider Non-Discrimination Law prohibits provider discrimination in two key areas: (1) a provider’s participation in the group or individual health insurance plan; and (2) coverage under the group or individual health insurance plan. The Law makes clear that insurance plans, insurance providers and others may not reject a provider from participating in-network simply because he or she is licensed as a Certified Registered Nurse Anesthetist (CRNA) and not as a physician anesthesiologist. The Law also prohibits insurance plans, insurance providers and others from establishing varying reimbursement rates based on licensure status, although insurance plans and insurers may continue to discriminate on the basis of quality or performance measures. In other words, reimbursement for anesthesia services must be the same for nurse and physician anesthesiologists who have equivalent quality and performance indicators.
The Provider Non-Discrimination Law is applicable to all non-grandfathered group health plans and health insurers offering group or individual health insurance.4 The Law is also incorporated into Section 715(a)(1) of the Employee Retiree Income Security Act (ERISA) and Section 9815(a) (1) of the Internal Revenue Code.5 Similar language is included in Section 1852(b) (2) of the Social Security Act regarding Medicare Advantage Plans.6 Hence, the Law is broadly applicable to most insurance plans, insurance providers and employer-sponsored health plans throughout the United States.
THE RESTRICTION TO CRNAS WITH INDEPENDENT PRACTICE
The Provider Non-Discrimination Law protects all providers practicing within the full scope of license and certification in their respective state. As of this writing, 22 states, Guam and the District of Columbia have opted out of CRNA supervision requirements.7 During the Public Health Emergency (PHE), the Centers for Medicare and Medicaid Services (CMS) waived the supervision requirements for CRNAs, resulting in CRNAs having independent practice authority in approximately 36 States.8 At its broadest possible application, the Law would have prevented payment discrimination in these 36 states. However, with the expiration of the PHE this past May 11, the Law was allowed to sunset, except in those states that adopt the opt-out process.9 Following the end of the PHE, CRNAs in the 22 opt-out states will remain protected by the Law.
CIGNA’S FUEL TO THE FIRE
On March 12, 2023, Coronis Health (formerly Anesthesia Business Consultants) published a blog post, noting that CIGNA would lower reimbursement by 15 percent for nonmedically directed procedures performed by CRNAs.10 In other words, a physician anesthesiologist billing under modifier “QZ” would be reimbursed 15 percent more than a nurse anesthetist billing under the same modifier. CIGNA’s timing is odd, given the shortage of providers and the increased number of providers practicing within the full scope of their license due to pressures placed on the system by the COVID-19 pandemic.11 CIGNA’s proposed payment policy adds fuel to fire by lowering reimbursements for facilities and provider groups already facing significant anesthesia payment pressures.
Notably, CIGNA’s stated policy threatens to violate the Provider Non-Discrimination Law for any provider practicing independently (billing modifier QZ) in 36 states through the end of the PHE and in 22 states, Guam and the District of Columbia, thereafter. Providers who see a decreased reimbursement under CIGNA’s new policy may have the right to pursue declaratory and injunctive relief, unfair competition laws, breach of contract and other claims, depending on applicability to the individual provider and/or provider group. Rather than saving money, CIGNA’s new plan is likely to spur lawsuits seeking equal protection and application of the Provider Non-Discrimination Law.
KATHERINE BOWLES, RN, ESQ. Before becoming an attorney, Kate practiced as a Registered Nurse at hospitals throughout Los Angeles, CA. She is currently a Partner in the Health Care Section at Hanson Bridgett LLP and can be reached at email@example.com.
1. Public Health Service Act section 2706(a) “Non-discrimination in health care is codified at 42 U.S. Code section 300gg-5. See also https://www. govinfo.gov/content/pkg/CRPT-113srpt71/pdf/CRPT-113srpt71.pdf (last accessed March 19, 2023).
2. https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/ laws/no-surprises-act/listening-session-announcement-regardingprovider-nondiscrimination-under-section-2706a-of-the-phs-act.pdf (last accessed March 19, 2023).
3. https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_ implementation_faqs15 (last accessed March 19, 2023).
4. See footnote 3.
5. See footnote 3.
6. See footnote 3.
7. https://www.aana.com/docs/default-source/sga-aana-com-webdocuments-(all)/801-fact-sheet-concerning-state-opt-outs-pdf. pdf?sfvrsn=450743b1_34 (last accessed March 19, 2023).
8. https://www.cms.gov/newsroom/fact-sheets/cms-waiversflexibilities-and-transition-forward-covid-19-public-healthemergency#:~:text=CMS%20will%20end%20this%20emergency,Reg. (last accessed March 19, 2023).
9. See footnote 9.
10. https://www.anesthesiallc.com/publications/blog/entry/a-change-inthe-wind-new-policy-further-complicates-anesthesia-practices (last accessed March 19, 2023).
11. CRNAs were among the most utilized providers in the nation during the COVID-19 pandemic, according to a CMS report summarized by the AANA. See https://www.aana.com/news/press-releases/2021/01/18/ nurse-anesthetists-among-most-utilized-healthcare-providersaccording-to-cms (Last accessed March 19, 2023).