American Association of Nurse Anesthesiology fights compensation gap between nurses and doctors

(CN) — A professional organization representing the majority of American certified nurse anesthetists filed a federal complaint against the U.S. Department of Health and Human Services on Friday, saying the department has violated the Affordable Care Act through inaction.

The American Association of Nurse Anesthesiology claims the department has allowed insurance companies and health plan providers to get away with compensating nurse anesthetists less than doctors for the same care work, despite the Affordable Care Act’s ban on license-based provider discrimination.

“When insurers violate the Affordable Care Act’s nondiscrimination provision, the Department of Health and Human Services is obligated to enforce the law and take action against insurance companies that discriminate against providers based solely on their licensure,” the association says in its complaint. “But HHS has simply failed to do so.”

The association filed its complaint in Cleveland though its main offices are in the Chicago suburb of Rosemont. It chose the Northern District of Ohio as the venue partly because of a recent reimbursement policy change outlined by Anthem, an insurance provider with the Blue Cross Blue Shield group.

The new policy reduces compensation by 15% for some anesthesia services provided by certified registered nurse anesthetists, while leaving reimbursement for physician anesthesia providers untouched. The policy was approved in June and will take effect in November, and the association says it will impact certified registered nurse anesthetists in northern Ohio.

“Paying CRNAs less than physicians — when this distinction is based upon nothing more than the license of the provider —does seemingly (if not blatantly) violate the Affordable Care Act’s explicit prohibition against insurers discriminating against providers based solely on licensure,” the association writes.

The upcoming policy change at Anthem may have been the trigger for the suit, but the association broadened its grievance beyond that specific issue. It accuses the Department of Health and Human Services of never having bothered to enforce the Affordable Care Act’s provider nondiscrimination rules in the 15 years since the act became law.

“That is not for lack of knowledge of discrimination,” the association claims. The Department of Health and Human Services is well aware that discrimination is occurring. Indeed, many industries have written to HHS pleading for HHS to invoke its statutory powers to put an end to discrimination in violation of the Affordable Care Act. Yet, HHS has taken no action to do so."

The association also notes that in 2020 Congress passed the “No Surprises Act.” It requires the secretaries of Health and Human Services, Labor, and the Treasury to “issue a proposed rule implementing the protections of … the Public Health Service Act” of 1944.

The 1944 act, which the Affordable Care Act amended, also outlines nondiscrimination protections for health care providers’ reimbursement based on licensure. The No Surprises Act gave the secretaries until the start of 2022 to implement their proposed rule to implement those protections, but to date no such rule has been published in the Federal Register.

“Thus, the Department of Health and Human Services has also failed to comply with the No Surprises Act,” the nursing association claims.

To correct these purported failures where the department has “abdicated its constitutional duty to enforce the law,” the association is suing it for two claims of relief under the Mandamus Act and the Administrative Procedures Act.

It also seeks three separate court orders: one finding Anthem’s planned compensation reduction for certified registered nurse anesthetists violates the Affordable Care Act, a second compelling the department to enforce that act’s provider non-discrimination policy, and a third compelling the department to report back to the court in 90 days with the steps it has taken to do so.

“Absent relief, plaintiff and its members will continue to face blatant discrimination,” the association says.

The Department of Health and Human Services itself has not yet issued any statement on the lawsuit.

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