HHS reverses course on ‘Harkin Amendment’ guidance

On May 26, 2015, the U.S. Department of Health & Human Services (HHS) released a revised FAQ for their guidance of the national health care provider nondiscrimination law.

In a big win for optometry, the U.S. Department of Health & Human Services (HHS) recently revised their guidance of the national health care provider nondiscrimination law, also known as the “Harkin Amendment,” by releasing an updated FAQ. Within the new FAQ, HHS acknowledged that its previous approach was no longer applicable.  Instead, HHS is now committed to take enforcement action against a group health plan or health insurance issuer that has failed to use "a good faith, reasonable interpretation" of Section 2706(a) of the Public Health Service Act.

This hard-won provision of the Affordable Care Act, sponsored by then Senator Tom Harkin, D-Iowa, specifies that any insurer offering group or individual 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.”

Previous guidance, released by HHS in April 2013, strayed from the statutory provision barring discrimination in participation and coverage based on licensure.  Instead, HHS suggested that insurers could avoid compliance by relying on so-called medical management or market reimbursement standards – the very same strategy the Harkin Amendment sought to do away with.

AOA and COA strongly opposed the flawed FAQ from the very start. Immediately, AOA started building support in Congress for fixing or completely scraping the guidance.  Months after the agency issued the guidance, AOA was instrumental in securing Congress’ call on federal agency officials to fix or completely scrap the FAQ within 30 days.

When lawmakers learned in mid-2014 that the guidance hadn't yet been fixed at the urging of AOA Congress called on the agency again to correct the flawed guidance or provide an explanation to lawmakers as to why the agency was ignoring Congress' wishes that was  included in omnibus spending legislation signed law late last year.