Insurance Discrimination – Against the Provider

Author: Jeana M. Singleton, Esq.

When the concept of “insurance discrimination” rears its ugly head, we often think of it in the context of when an insurance company treats some people differently than others based on protected classes, such as race, national origin, sex, or religion. Sometimes, this type of discrimination occurs through underwriting guidelines, coverage denials, refusal to renew coverage, limiting coverage, or imposing artificial age limits on coverage. However, there is another type of “insurance discrimination” that I find particularly fascinating – discrimination against certain types of providers.

In 2010, the United States experienced a dramatic change in healthcare regulations through the passage of the Affordable Care Act (“ACA”). Of particular note, the ACA included a provision that prohibits discrimination by insurers against providers acting within the scope of their licensure. 42 U.S.C. § 300gg-5. Of course, a payer is still permitted to establish varying reimbursement rates based on quality or performance measures. Id. When insurers violate the ACA, the United States Department of Health and Human Services (“HHS”) is obligated to take action. 42 U.S.C. § 300gg-22. However, HHS has never enforced the provider nondiscrimination provision of the ACA in the 15 years since it was passed.

Further, the No Surprises Act, passed in 2022, requires HHS, the Secretary of Labor, and the Secretary of the Treasury to issue a proposed rule implementing the provider non-discrimination protections under the ACA. These were supposed to be proposed by Jan. 1, 2022, and implemented 6 months after the conclusion of the comment period. There has been no proposed rule yet.

In light of these shortcomings, the American Academy of Nurse Anesthesiology (“AANA”) recently filed a mandamus action in the United States District Court for the Northern District of Ohio in an effort to compel HHS to commence with rulemaking and begin enforcing the provider nondiscrimination provisions of the ACA. In short, AANA contends that certified registered nurse anesthetists (“CRNAs”) have been discriminated against by insurers due to their licensure by reimbursing CRNAs at a lower rate than physician anesthesiologists (particularly when CRNAs bill using modifier QZ) – which violates the ACA. The lawsuit was triggered when Cigna and Anthem BCBS recently decreased CRNA reimbursement from 100% of the physician reimbursement to 85%. AANA asserts that this discriminatory conduct harms both CRNAs and patients. In addition to threatening the livelihood of CRNAs by significantly decreasing their reimbursement, it also creates patient safety and access to care issues.

Many will be watching as this mandamus action unfolds. If successful, there could be wide-reaching reimbursement implications on other provider licensees who may be reimbursed at lower rates based on their licensure type. (Prime examples are other types of advanced practice providers, such as nurse practitioners, clinical nurse specialists, certified nurse midwives, and physician assistants.) Stay tuned for future developments!

If you have any questions regarding the Affordable Care Act or other healthcare legal matters, please don’t hesitate to contact Brennan, Manna, & Diamond Health Law Group Member Jeana M. Singleton at 330-253-2001 or jmsingleton@bmdllc.com.

About Ms. Singleton:

Jeana Singleton has a national healthcare law practice focusing on healthcare operational matters, including state and federal regulatory compliance, healthcare transactions, healthcare policy, public health initiatives, corporate law, and business-legal strategy.

Jeana’s depth of experience on a wide range of healthcare matters provides the knowledge and skill necessary to help her clients navigate complex legal issues in a highly complex industry on matters that impact their business performance. Jeana is licensed in Ohio, Michigan, Tennessee and Kentucky.