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March 29, 2024

Opinion: Provider Non-Discrimination Law Continues To Be Violated By Insurance Companies

Since the enactment of the Affordable Care Act (ACA) in 2010, the Public Health Service Act has outlawed the discriminatory payment practices based solely on the provider licensure category.  See PHS Act section 2706(a); Social Security Act 1852(b)(2). [1]

The ACA regulators confirmed that the language is self-implementing, meaning that there are no companion regulations required to interpret the law. [2] Notwithstanding that this has been the law for the past 14 years, insurance companies and plans, including ERISA plans, continue to discriminate on providers practicing within the full scope of practice but licensed as a nurse vs. physician anesthesiologist or nurse practitioner vs. physician primary care provider. 

Because contractual rates are often withheld as proprietary, it can be difficult, if not impossible, for the providers to become knowledgeable of these unlawful practices. Most recently, CIGNA indicated that it would implement a payment policy with a 15% reduction for the QZ modifier identifying that a nurse anesthesiologist performed the anesthesia. [3] In the author’s opinion, such practices have no sound basis, particularly in light of the recent shift toward quality and performance based reimbursement. 

[1]  Public Health Service Act section 2706(a) “Non-discrimination in health care is codified at 42 U.S. Code section 300gg-5. 

[2] https://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/aca_implementation_faqs15  (last accessed March 22, 2024).

[3] https://pubs.asahq.org/monitor/article-abstract/87/4/31/137952/Cigna-Policy-Change-on-Modifier-QZ-Payment?redirectedFrom=fulltext (last accessed March 22, 2024)

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