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.

Oregon and Section 2706

I thought that Oregon would be ahead of the game when it came to the Affordable Care Act roll-out, especially as it pertains to CAM providers. The state already issues licenses for most types of CAM practitioners (notably, massage therapists and naturopaths), which means that they understand the necessity of having a diverse range of medical providers available for treatment. Surely, they’d be on board with Section 2706, the provision that makes it illegal for insurance companies to pick and choose the types of providers they cover.

But then the Exchange opened. By and large, the policies being offered there (which, by their very existence, needed to conform to the rules outlined in the ACA) did not offer CAM of any kind. Only the policies at the very top – platinum plans as well as a few gold plans – covered naturopathic, chiropractic, and acupuncture.

Massage? Don’t even bother asking. Massage coverage wasn’t a category on the Cover Oregon website at all, due to the fact that zero plans on the exchange offered it.

Wait, it gets worse: Many insurance policies that weren’t from the exchange (ie, plans available through employers) were changing in January – ostensibly to fall more in-line with ACA regulations. For at least a few of these plans, these changes included the removal of previous CAM coverage. Definitely not in compliance with the new regulations, but who was going to argue?

Well, plenty of people were going to argue. But who was going to listen or do anything about it? Passing a new law is easy compared to the cumbersome task of actually enforcing it.

Since the Exchange began in October, the Oregon’s insurance commissioner has received an earful of complaints, from groups like the local naturopathic and chiropractic associations, as well as from our local AMTA chapter. Progress has been slow.

When I personally emailed the commissioner’s office in November, I was told the following: “The Oregon Department of Justice is currently reviewing draft guidance on Section 2706(a) of the Public Health Service Act that was drafted by the division. We hope to issue final guidance later this month.” Will the ODOJ interpret the law as it was originally intended? What will that mean for the thousands of policies already in force that discriminate against providers?

It’s now January – the Exchange plans have started, the Affordable Care Act is fully active – and there still hasn’t been any word. The insurance commissioner met with the Oregon House Committee on Healthcare last week, and she assured them that guidelines would be issued by the end of the this month. Now that she has to answer to the legislature, she’ll hopefully be held to her promise. Naturally, I’ll update the blog as soon as I hear anything.

2706 Flier

This flier (see PDF here) was passed out at the AMTA National Convention last week. Take a look!

Massage Therapy’s Golden Moment: Making 2706 Work For Everyone!

Did you know that the Affordable Care Act contains language in it that will benefit both massage clients and massage therapists? Section 2706 of the ACA states that insurers can no longer discriminate against providers who wish to participate in and be reimbursed by insurance policies, so long as that provider is licensed or certified by the state and working within his or her scope of practice.

While this may not sound all that exciting, the implications of Section 2706, also known as the Nondiscrimination Provision, are huge.

How will this affect clients?
Most importantly, the Nondiscrimination Provision will offer clients more choice for what kind of provider they want to treat their conditions. For any type of condition that is covered under a policy, such as low back pain or shoulder pain, clients can see any type of provider that is licensed to treat the condition. Want to see a medical doctor about it? No problem. A massage therapist? Just as easy.

How will this affect massage therapists?
As you can imagine, an increase in choice for our clients is great news for us as well. No longer will a client have to cancel her doctor-prescribed massage just because she can’t afford the out-of-pocket price. If insurance if going to cover treatment for a condition, it will cover all qualified treatments, just as long as the treatment is within the providers’ scope of practice and the provider is licensed or certified by the state.

If your state does not yet allow massage therapists to join insurance networks, that will soon be changing. Not every massage therapist will be able to join every network, but insurers will have to contract with enough therapists to serve any given region. Once in-network, therapists will be able to bill insurance directly and receive reimbursement for massage treatments. Clients will only be responsible for a small copay or coinsurance, which means that they will be able to come in more frequently to receive needed treatment.

What if I don’t want to take insurance?
If you don’t plan on taking insurance in your massage practice (or if you only take PIP insurance), this new law will not affect you at all. Just as some providers will not want to deal with taking insurance, many patients will not want to bother with finding covered providers. There will always be a market for cash massages, and the Nondiscrimination Provision will not be taking any clients out of that market. Rather, this law will increase the demand for massage in general, both as a relaxation tool and as a medical treatment.

How can I help?
We need help from all levels of the industry to make sure that the Section 2706 gets implemented correctly in every state. Please go to the Integrative Healthcare Policy Consortium (IHPC) site to find out how you can be involved and take action. Your efforts will help to determine the future of the massage profession. Thanks for being a part of this!

2706: It’s the law and it’s worth defending. Let’s make it work!

2706 FAQ for Massage Therapists

I updated the original FAQ document to be more specific to massage therapists. Check it out below!

Frequently Asked Questions about Section 2706

Section 2706 of the Affordable Care Act (ACA) is titled “Nondiscrimination in Health Care.” It requires that insurers include and reimburse licensed health care providers in health insurance plans. The primary sponsor and supporter of the section is Senator Tom Harkin (D-Iowa).

The IHPC FAQ is written for licensed and certified practitioners to address general questions related to the interpretation and implementation of Section 2706 of the Affordable Care Act. The author of the original FAQ is the Hon. Deborah Senn, JD. This document has been modified with a focus towards massage therapists by Natalie Weintraub, LMT.

The ACA nondiscrimination provision states: “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.”

FAQs

  1. Why is the nondiscrimination provision important?
  2. When does the nondiscrimination provision go into effect?
  3. What types of health plans does it cover?
  4. Are “non-grandfathered plans” covered?
  5. What types of CAM and integrative health care providers does it cover?
  6. How does it work?
  7. Will providers need to be in-network with an insurer in order to get reimbursed?
  8. Will patients need a referral for massage therapy from a primary care provider (PCP) in order for the massage to be covered?
  9. Some people think that the nondiscrimination provision will cause an increase in “services” and, therefore, an increase in cost. Is that correct?
  10. Does that mean that every procedure a massage therapist does will be covered by an insurer?
  11. Will I be reimbursed at the same level as an MD?
  12. What if I practice in a state where massage therapists are not licensed?
  13. Will all massage therapists in my area be covered by the health plans?
  14. I don’t take/don’t want to take insurance; how will this affect me?
  15. Who’s responsible for implementing the nondiscrimination provision on a state level?
  16. What negative results may occur during implementation of the nondiscrimination provision?
  17. How can IHPC assist my state association in ensuring that the nondiscrimination provision is implemented properly?

Q1. Why is the nondiscrimination provision important?
A1.
The nondiscrimination provision provides a unique opportunity to create affordable access to CAM providers for their patients. Insurance companies will be required to give the same rights and coverage to all licensed healthcare providers, medical doctors and massage therapists alike. Full, broad interpretation and implementation of the nondiscrimination provision would benefit patients and community health as a whole, reduce costs, and, incidentally, benefit providers.

Q2. When does the nondiscrimination provision go into effect?
A2.
The nondiscrimination provision goes into effect on January 1, 2014. Enrollment in “Exchange” plans can start in October, 2013.

Q3. What types of health plans does it cover?
A3.
The nondiscrimination provision applies to both market-based healthcare plans and insurance plans bought on the “health insurance exchanges,” meaning, any insurance plan in your state. This also includes any self-insured plan in your state (aka. ERISA), which are generally administered by large companies such as Boeing, Microsoft, Safeway, etc.

Q4. Are “non-grandfathered plans” covered?
A4.
The passage of time and plan changes will most likely answer questions about grandfathered plans.

Q5. What types of CAM and integrative health care providers does it cover?
A5.
It covers any state licensed or state certified healthcare provider. This includes chiropractors, M.D.’s, naturopathic physicians, acupuncturists, massage therapists, osteopaths, optometrists, nurse practitioners and licensed or direct entry midwives and podiatrists, as long as they are licensed or certified by the state.

Q6. How does the nondiscrimination provision work?
A6.
Here’s the first and most important sentence of the nondiscrimination provision:
“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.”

When a massage therapist treats any health condition covered in an insurance plan (e.g., back pain, neck pain, etc), the massage therapist is eligible for reimbursement, so long as that provider is licensed by his or her state and can treat the condition within his or her scope of practice.

Example: Suzy Smart has a backache that needs treatment. Treatment of back pain is covered by her health insurance plan. Suzy knows that therapeutic massage is good for back pain, so she looks up a massage therapist in her insurance network. As long as the therapist Suzy chooses is licensed in their state and is working within his or her scope of practice, the massages will be covered by insurance.

Q7. Will providers need to be in-network with an insurance plan in order to be reimbursed?
A7.
Depends on the plan. Some insurance companies will reimburse out-of-network providers for covered services, albeit at a lower rate (patients will be responsible for a larger portion of the cost). Other insurance companies will only reimburse providers in their own network.

Q8. Will patients need a referral for massage therapy from a primary care provider (PCP) in order for the massage to be covered?
A8.
Depends on the plan.

Q9. Some people think that the nondiscrimination provision will cause an increase in “services” and, therefore, an increase in cost. Is that correct?
A9.
The use of the word “service” is often ambiguous in an insurance context. More importantly, the nondiscrimination provision is not about increasing services, but about increasing the selection of covered health care providers. For example, insurance policies have always covered treatment for back pain. The only difference now is that patients will have a greater choice as to what type of provider they can see for their back pain. Some may still choose to go exclusively to medical doctors, while others may prefer to seek out CAM alternatives. Insurance will cover any of these options.

As far as costs are concerned, full implementation of the nondiscrimination provision is likely to reduce, not increase, cost. Many studies demonstrate treatment and care by CAM providers is more cost-effective than conventional medical care.

Q10. Does that mean that every procedure a massage therapist does will be covered by an insurer?
A10.
Although the nondiscrimination provision gives patient access to CAM providers, every procedure within the scope of a CAM provider’s license might not be covered. If an insurer considers a procedure to be not medically necessary, not clinically efficacious, or “experimental”, the procedure may be excluded from coverage. On the other hand, insurers should not be allowed to use these categories or exclusion in order to defeat the purpose of the nondiscrimination provision.

Q11. Will I be reimbursed at the same level as an MD?
A11.
There is nothing in the ACA that sets physician or provider fees. The insurers set reimbursement fees subject to any state law. The following sentence in the nondiscrimination provision addresses the fee issue, stating only that an insurer is not prohibited from establishing varying rates based on quality and performance:

“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.”

It is unlikely that the Department of Health and Human Services, the federal agency most responsible for implementing the ACA, will get involved in the reimbursement issues, notwithstanding the above language.

Q12. What if I practice in a state where massage therapists are not licensed?
A12.
The nondiscrimination provision will not apply to massage therapists that are not licensed or certified by the state in which they practice, even if the state does not offer licensing or certification.

Q13. Will all massage therapists in my area be covered by the health plans?
A13.
An insurer does not have to include every massage therapist in its network; however, it must include enough to serve the population. The technical term for this is “network adequacy.”

Only a few states have an “every willing provider” law, which would mean that all qualified providers would be covered equally by insurers. Providers in other states will have to contract with an insurer in order to work within its network.

Q14. I don’t take/don’t want to take insurance. How will this law affect me?

A14. If you do not plan on taking insurance in your massage practice (or if you only take PIP insurance), this law will not affect you. Just as some providers will not want to deal with taking insurance, many patients will not want to bother with finding covered providers. The nondiscrimination provision does not change the way cash massages function, nor does it change PIP laws.

Q15. Who’s responsible for implementing the nondiscrimination provision on a state level?
A15.
The implementation details will vary from state to state, although the Department of Insurance within each state will often take the lead. IHPC hopes to assist state associations with understanding which agencies have oversight in the various states and what materials will be helpful throughout the implementation.

Q16. What negative results could occur during the implementation of the nondiscrimination provision?
A16.
Several states have had experience with state laws similar to the nondiscrimination provision and have found that insurers will sometimes try to cap the number of visits, lower reimbursement rates, remove the service altogether, or use other strategies to limit the implementation of non-discrimination policies. But it’s important to note that making access to a CAM provider difficult violates the letter and spirit of the nondiscrimination provision.

Further, as noted above, by limiting the number of CAM providers, insurers may be violating “network adequacy” laws on both the state and federal level. The first line of defense is to educate decision-makers about the nondiscrimination provision and make your state association’s voice heard.

Q17. How can IHPC assist my state association in ensuring that the nondiscrimination provision is implemented properly?
A17.
IHPC will be in communication with national massage associations to assist with implementation efforts around the country. IHPC plans to assemble an implementation kit for each of the states suggesting how to reach out to policymakers, insurers and other stakeholders in your state responsible for implementing the ACA as well as how to ensure a smooth and successful implementation.

Essential Health Benefits

Within its 2,400 pages, the Affordable Care Act did not create any sort of health plan; it left the details and specifics of those to the states. It was not silent on the general rules of healthcare, however, creating a list of ten criteria that it deemed “essential” to insurance coverage. Using this list as an outline, each state* is charged with creating a “benchmark plan”, a representative plan that would serve as a guide for all individual and small group plans.

(And by “create”, I really just mean “choose among several options already available in the state, federal, and small group markets”.)

List of Essential Health Benefits:

  1. Ambulatory patient services
  2. Emergency services
  3. Hospitalization
  4. Maternity and newborn care
  5. Mental health and substance use disorder services, including behavioral health treatment
  6. Prescription drugs
  7. Rehabilitative and habilitative services and devices
  8. Laboratory services
  9. Preventive and wellness services and chronic disease management
  10. Pediatric services, including oral and vision care

As you can see, this list is very general, and most of the benefits will be open to a wide interpretation. Regardless, this helps to standardize coverage in an important way: The benchmark plan that each states comes up with must address all ten EHB, and this plan will be used as a point of reference (or, benchmark) for private insurance policies. That means that insurance companies can’t restrict policies to cover less than what’s spelled out in the benchmark plan, even for individuals with expensive medical conditions.

And while, yes, states will probably not interpret these benefits as broadly as they could, the EHB bodes well for CAM providers. Take a look at the first benefit: Ambulatory Services. Services that help individuals for issues with motion or movement. Issues with movement, like, for example, back pain.

And it hardly needs to said that massage is a great solution for back pain.

This list, coupled with Section 2706, is very good news. The EHB says that back pain is a covered medical problem. Section 2706 says that any provider who is licensed to treat back pain can be covered under insurance, no matter if the provider is a medical doctor, a chiropractor, or a massage therapist.

Another benefit that jumps out is EHB #9: Preventative and wellness services and chronic disease management. As I said above, these benefits are very general and will be interpreted differently by different states, but it would be a stretch to suggest that CAM providers didn’t have something to offer for wellness services or chronic disease (eg, chronic pain).

The benchmark plans don’t need to be solidified until later in the year – enrollment in the Exchanges begin in October – but it’s important to pay attention now to how each state understands and addresses those benefits that have been deemed essential by the Affordable Care Act.

*From what I understand, states that have chosen to not accept federal funds for Medicaid expansion are not obligated to create a benchmark plan.

2706 Details

What does Section 2706 mean?

I spoke on the phone this weekend with Judge Deborah Senn, former WA insurance commissioner who helped to design the Every Category law that covered CAM providers in her state. She explained to me the meaning and intent of Section 2706 of the ACA, and what it means for both insurance policies and providers.

[Health insurance] shall not discriminate…against any health care provider.

This law is specifically written to cover providers, not services. That means that insurance policies can no longer cover massage therapy only when performed by a chiropractor or doctor, which is something that they love to do. If massage is indicated, any provider who is licensed to perform massage will be covered. That means us.

If a client wants to use health insurance to get a massage, he or she may be required to get a doctor’s referral first. If a doctor determines that massage therapy is a good course of action for the diagnosis given (eg, back pain, neck pain), then insurance will have to cover the massage, regardless of the type of practitioner that gives it (given, of course, that said practitioner is working within his or her scope of practice).

Massage therapists will have to be credentialed with insurance companies in order to work with them, and although this can be tiresome, it has significant benefits (which I will explain later). Beyond that, the new law makes everything pretty straightforward. If your doctor says you should get a massage, insurance will cover it. Simple!

That said, you can be absolutely sure that insurance companies will only comply with this while kicking and screaming. As the ACA rolls out in full at the beginning of 2014, the first few months especially will be rather frustrating. It will be up to us, the providers, to make sure that both our clients and ourselves can get the most benefit out of Section 2706.

I hope that this blog will be able to serve as a guide to dealing with insurance companies – beyond getting credentialed and billing for services, I want to show you the ways that these companies will try to deny your claims. I want you to know your rights under the law. I want to teach you navigate the waters of insurance and get yourself paid. It’s going to take some extra effort, and I know that not every LMT will want to deal with the extra hassle. But the more massage therapists who do, the greater our rewards will be.