[Federal Register Volume 79, Number 48 (Wednesday, March 12, 2014)]
[Notices]
[Pages 14051-14052]
From the Federal Register Online via the Government Publishing 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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