Implementing Health Reform: Essential Community Providers; The Contraceptive Coverage Accommodation

The week of August 27, 2015 was quiet in terms of Affordable Care Act implementation activities, but there were at the end of the week on August 21 a couple of noteworthy developments.

First, the Centers for Medicare and Medicaid Services published in the Federal Register notice of a new collection of data regarding essential community providers (ECPs) to support the certification of qualified health plans (QHPs) for plan year 2017.  Later in the day, CMS published the data collection forms and supporting statements at its Paperwork Reduction Act website.

The ACA requires QHP insurers, including Stand-alone Dental Plan insurers, to include in their networks ECPs, where available, that serve predominantly low-income, medically underserved individuals. The ACA charges the Department of Health and Human Services (HHS) with establishing criteria for inclusion of ECPs as a part of QHP certification requirements.

HHS has established inclusion criteria at 45 CFR 156.235, requiring QHPs to include in their networks ECPs of sufficient number and geographical distribution to ensure reasonable and timely access by low-income, medically underserved individuals to a broad range of such providers. Currently, QHP insurers rely on a non-exhaustive HHS list of available ECPs to identify qualified ECPs and must include a number of ECP providers at least equal to 30 percent of the providers on the ECP list. But insurers may write in qualified ECPs on their ECP template as part of their QHP application and count them toward meeting the standard.

Most insurers have relied more heavily on ECP write-ins than on ECPs from the HHS list to satisfy the 30 percent standard. Because an insurer’s ECP write-ins count toward satisfaction of the ECP standard for only the issuer that writes in the ECP on their ECP template, this approach to calculating the available ECPs has resulted in a variation of the available identified ECPs for a given service area based on the number of ECP write-ins a specific insurer includes on their ECP template.

To improve the accuracy and comprehensiveness of its ECP list, HHS intends to collect more complete data from ECPs so that all insurers are held to a more uniform ECP standard. To this end, HHS is going to solicit qualified ECPs to complete and submit a provider petition to HHS to be added to the HHS ECP list or to fill in missing data fields to remain on the list. This will create a more robust list from which QHP insurers can satisfy the 30 percent standard. The extent to which this effort succeeds will inform HHS’s future proposals with regard to continuing to allow write-ins.

HHS has compiled an initial non-exhaustive list of available ECPs for 2016, based on data it and other Federal partners maintain. HHS updates this ECP list annually.

The HHS ECP list for the 2016 benefit year contains:

• Federally Qualified Health Centers (FQHCs) and FQHC look-alikes.
• Ryan White HIV/AIDS Program providers.
• Health centers providing dental services, including all of the above organizations that have noted to Health Resources and Services Administration (HRSA) that they provide dental services in their scope of project.
• Hospitals: Critical Access Hospitals, Rural Referral Centers, Disproportionate Share (DSH) and DSH-eligible Hospitals, Children’s Hospitals, Sole Community Hospitals, Freestanding Cancer Centers.
• Sexually Transmitted Disease Clinics, Tuberculosis Clinics, Hemophilia Treatment Centers, and Black Lung Clinics.
• Rural Health Clinics that are Medicare-certified Rural Health Clinic and that 1) accept patients regardless of ability to pay and offer a sliding fee schedule; or are located in a primary care Health Professional Shortage Area (HPSA) and 2) accept patients regardless of coverage source (i.e., Medicare, Medicaid, CHIP, private health insurance, etc.).
• Family planning providers receiving grants under Title X of the PHS Act and not-for-profit or governmental family planning service sites that do not receive a grant under Title X of the PHS Act.
• Indian Health Providers: Tribes, Tribal Organization and Urban Indian Organization providers, and Indian Health Service Facilities.

The 2017 data collection will allow CMS to update its ECP list, but also to fill in missing data elements regarding currently listed ECPs. In particular, CMS hopes to collect the National Provider Identifiers (NPIs), points of contact (POCs), and numbers of MDs, DOs, PAs, NPs, DMDs, and DDSs authorized to independently treat and prescribe within listed facilities.

Petitions must be submitted for a provider facility seeking to be listed by MDs, DOs, DDDs, PAs, or NPs authorized to independently treat and prescribe within the listed facility and must attest that:

• The provider consents to be added to or remain on the HHS ECP list for 2017.
• The provider is either A) eligible for or participating in the 340B program or is a Rural Health Clinic or is an Indian Health Care Provider; or B) located in a low-income ZIP code or health practitioner shortage area, unless the provider has been included in a verified datasets from partner agencies and appears on the Draft 2017 ECP List.
• The provider accepts patients regardless of ability to pay and offers a sliding fee schedule, unless the provider has been included in one of the verified datasets from partner agencies appears on the Draft 2017 ECP List.
• The provider accepts patients regardless of coverage source (i.e., Medicare, Medicaid, CHIP, private health insurance, etc.).
• The provider agrees to be listed in a consumer-facing directory of ECPs.

The petition must also:

• List the number of FTE medical and dental practitioners at the given facility.
• List the number of executed contracts with and good faith contract offers rejected from QHPs.

Petitions must be submitted directly by providers and may not be submitted by third party entities, such as advocacy groups, State departments of health, State-based provider associations, and providers other than the provider about which the petition is applicable. Authorized legal representatives of an ECP may, however, submit a petition on behalf of the ECP.

CMS estimates that about 24,000 providers will be subject to the requirement for the first year, with the number growing to over 30,000 by the third year.

Another Appellate Decision Upholding HHS’s Contraceptive Coverage Accommodation For Religious Organizations

In other news, in Michigan Catholic Conference v. Burwell. the Sixth Circuit Court of Appeals joined the Second, Third, Fifth, Seventh, Tenth, and District of Columbia Circuits in upholding the accommodation that the federal government has offered religious organizations from the mandate that their health plans offer contraceptive coverage for their employees and students. Under the contraceptive accommodation, a nonprofit organization that objects to offering contraceptive coverage to its employees or students may inform either its insurer or third party administrator, or HHS, of that objection, and the insurer or TPA will provide coverage without involvement from the organization. The plaintiffs in Michigan Catholic Conference challenged the accommodation under the Religious Freedom Restoration Act, which prohibits administrative agencies from substantially burdening the free exercise of religious belief unless the administrative action is the least restrictive means to furthering a compelling governmental interest.

The Sixth Circuit had earlier reached this same conclusion, but the plaintiffs sought certiorari from the Supreme Court, which had set the judgment aside and remanded for reconsideration in light of the Supreme Court’s 2014 Hobby Lobby decision. The Sixth Circuit on remand concluded that Hobby Lobby had strengthened its original conclusion by discussing favorably the accommodation, which had not been offered the for-profit entity in Hobby Lobby. The Court concluded, in a particularly clearly written opinion, that the current accommodation rule does not substantially burden the plaintiffs’ free exercise, and thus does not violate the RFRA.

With the circuits lining up unanimously upholding the contraceptive accommodation, Supreme Court review seems less and less likely. Nevertheless, certiorari petitions are pending before the Supreme Court on this issue, and the Court’s 2015 term may see yet another ACA-related Supreme Court decision, addressing the contraceptive requirement.