EHB Discrimination

As I wrote about last week, insurance companies have been doing a great deal of “creative interpretation” in order to make the ACA guarantee only what insurers intend to cover. We see this very clearly with Section 2706: the broad, umbrella coverage of “any health care provider” has been reinterpreted to mean… well, nothing.

In the state of Oregon where I work, I’ve been in contact with the Insurance Division through filing complaints regarding discrimination. It hasn’t been fun.

The process has gone something like this:

  1. I send a list of complaints/denials to the analyst.
  2. The analyst forwards each complaint to the insurance company in question and asks them to explain their actions.
  3. The insurance company replies to the analyst with some reason as to why they denied coverage for this claim.
  4. The analyst forwards the reply to me and tells me that my denial is not, in fact, discrimination under Section 2706.

What’s missing from this chain of events? Something pretty important, actually: Any critical analysis at all of what the insurance companies say. Of course insurance companies are going to defend their actions! It’s the state’s job to tell them when they’re breaking the law. Instead, the excuses are being taken at face value.

After some back-and-forth exchanges, I’ve landed on the overarching reason as to why my massage services keep getting denied: Massage is not considered an Essential Health Benefit.

Way back when Oregon came up with their benchmark plan – that is, a plan that covers all of the Essential Health Benefits outlined in the Affordable Care Act – they did not choose a plan that covered CAM services. Acupuncture, chiropractic, and naturopathic could be added to the plan for an extra fee, but massage was nowhere to be found.

However, just because you say something doesn’t make it true. Massage has been proven to fulfill several of the EHBs in multiple ways. Mental health services. Rehabilitative services. Preventative and wellness services, including chronic disease management. There are documented medical benefits to massage therapy.

But because Oregon decided, however erroneously, that massage therapy did not meet any EHB requirements, LMTs were removed from the (not actually existent) list of “any health care provider” covered by Section 2706.

Most insurance companies aren’t fully denying the service of massage, though. That would effect other provider types who do meet the EHB requirements. Some insurers have placed massage in a category with physical therapy, which means that massage clients need to meet a large deductible before the service is covered, even though other CAM services are available without this hurdle.

Other companies have decided that massage is covered, but only in conjunction with another treatment, such as an chiropractic adjustment or a naturopathic visit. Since LMTs are, by their license, only allowed to perform massage, the only massage therapists who can take advantage of this are those who work under a DC or ND and don’t do their own billing.

…And just like that, we’re back to where we started: CAM coverage for everyone except LMTs. Massage coverage when performed by anyone except an LMT. In what world is a massage necessarily more effective when given by someone who doesn’t have 600+ hours of exclusive training? How can insurance companies claim not to discriminate when they refuse to accept a massage CPT code on its own, but cover the same exact code when it’s coupled with an adjustment or office visit code?

I pointed this out to the analyst, and he just shrugged.

I don’t know if Oregon has drafted a state-specific bill intended to reiterate the aims of Section 2706 (as a few other states have done), but I haven’t heard anything about one. The only reassurance I can find is that the Insurance Division just created a committee to talk about EHB coverage for a new benchmark plan for 2017 and beyond. I wasn’t chosen to be on the committee, but you can bet that I’ll be sharing my opinion.

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State Non-Discrimination Laws

There’s a good bit of linguistic gymnastics going on when it comes to interpreting Section 2706:

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.

What kind of health care provider does Section 2706 apply to? Any kind. By not specifying provider types, the ACA intended to create an all-inclusive umbrella of coverage, so that no provider type would be unintentionally left out. Sounds nice, right? Unfortunately, this non-specific language is allowing insurance companies to continue its discrimination.

That’s what makes the most recent news out of Hawaii so frustrating. Some background: This state is one of a few states (also including New Mexico and Rhode Island) that has been drafting their own version of Section 2706. By making the language of Section 2706 into state law, these states are telling insurance companies that this section of the ACA is important and must be followed.

Last month in Hawaii, the state senate reviewed the language of the bill and decided to rework it to focus support specifically on naturopathic doctors.

Why just naturopaths? Hawaii already has strong insurance coverage for chiropractic and acupuncture; naturopathic medicine needs more protection against discrimination. And so, by specifying that insurance companies cannot discriminate against “naturopathic physicians acting within their scope of practice”, the law gets done what Section 2706 has had trouble doing, albeit for just one provider type. But one provider type is certainly better than none.

Recent news, however, shows just how tight of a grip the insurance companies have on lawmakers. The bill that had been reformulated to protect naturopaths has been amended yet again back to its original focus, the more general protection of “all licensed care providers”.

And, sure, that might sound great – everyone gets covered, right? Not just naturopaths, but also massage therapists. A win for us, surely?

But protection for “any health care provider” is already the exact language of Section 2706, and insurance companies are fighting hand-over-fist to allow continued discrimination. And considering that this change was in part due to requests by Kaiser Permanente, I think the insurance companies know exactly what they’re doing.