August 24, 2010 

Secretary Kathleen Sebelius 

c/o Office of Consumer Information & Insurance Oversight 

Department of Health &Human Services 

Attention: OCIIO-0004-IFC 

P.O. Box 8016 

Baltimore, MD 21244-1850 

Submitted electronically to http://www.regulations.gov 

Re: Patient Protection and Affordable Care Act; Requirements for Group Health 

Plans and Health Insurance Issuers Under the Patient Protection and Affordable 

Care Act Relating to Preexisting Condition Exclusions, Lifetime and Annual 

Limits, Rescissions, and Patient Protections; Final Rule and Proposed Rule. 

RIN 1545-BJ61, RIN 1210-AB43, RIN 0991-AB69. 75 Fed.Reg. 37188 (June 28, 2010). 

Dear Secretary Sebelius; 

The American Nurses Association (ANA) welcomes the opportunity to offer comments 

on this proposed rule. The ANA is the only full-service professional organization 

representing the interests of the nation's 3.1 million registered nurses, the single largest 

group of health care professionals in the United States. We represent RNs in all roles 

and practice settings, through our state and constituent member nurses associations, 

and organizational affiliates. ANA advances the nursing profession by fostering high 

standards of nursing practice, promoting the rights of nurses in the workplace, 

projecting a positive and realistic view of nursing, and advocating before Congress and 

regulatory agencies on health care issues affecting nurses and the public. Our 

members include Advanced Practice Registered Nurses (APRNs) such as Nurse 

Practitioners (NPs), Clinical Nurse Specialists (CNSs), Certified Nurse Midwives 

(CNMs), and Certified Registered Nurse Anesthetists (CRNAs). 

This interim final regulation (IFR) provides clarification on implementation of the 

following Patient Protections and Affordable Care Act of 2010 (ACA) provisions limiting 

pre-existing conditions, exclusions, lifetime and annual caps, and rescissions, as well as 

providing patient protections, including the choice of health care professional. The 

American Nurses Association would like to offer comments regarding the choice of 

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health care professional section in the IFR, and address patient protections regarding 

the annual and lifetime limits, as well as rescissions. 

Section 2719A of the PHS Act, Patient Protections (26 CFR 54.9815-2719AT, 29 

CFR 2590.715-2719A, 45 CFR 147.138) 

The provision occasioning ANA’s primary concern occurs in the Patient Protection 

sections of the IFR. We would like to see the “Choice of health care professional” 

language strengthened to protect existing practice patterns wherein pediatric and family 

nurse practitioners are specifically included among health care professionals who may 

be designated as primary care providers, and assure that that the model language for 

the plan issuers’ notice is modified accordingly. 

The language modification we are seeking is as follows, in each of the three 

identical provisions: 

“(2) Designation of pediatrician pediatric health care professional as primary care 

provider – (i) In general. If a group health plan, or a health insurance issuer 

offering group or individual health insurance coverage, requires or provides for 

the designation of a participating primary care provider for a child by the 

participant, beneficiary, or enrollee, the plan or issuer must permit the participant, 

beneficiary, or enrollee to designate a physician (allopathic or osteopathic) or 

nurse practitioner who specializes in pediatrics as the child’s primary care 

provider if the provider participates in the network of the plan or issuer and is 

available to accept the child. In such a case, the plan or issuer must comply with 

the rules of paragraph (a)(4) of this section by informing each participant (in the 

individual market, primary subscriber) of the terms of the plan or health insurance 

coverage regarding designation of a pediatrician or nurse practitioner who 

specializes in pediatrics as the child’s primary care provider.” 

Subsection (a) of each of the three iterations of the provision, “Choice of health care 

professional,” notes generally that a plan requiring or permitting the designation of a 

participating primary care provider by the participant, beneficiary or enrollee must permit 

the designation of any participating provider available to accept the same. If an 

individual does not designate a primary care provider, the plan may do so on his or her 

behalf, until the individual designates their provider preference. This overarching 

provision does not distinguish among eligible primary care providers. 

Paragraph (2) of the same subsection then qualifies that the “choice of health care 

professional” for a child – made by the participant, beneficiary or enrollee -- “must 

permit the designation of a physician (allopathic or osteopathic) who specializes in 

pediatrics as the child’s primary care provider” if the physician is in network and 

available to take the child as a patient. This language appears to eliminate the option of 

designating a pediatric nurse practitioner or family nurse practitioner for pediatric 

primary care, an oversight that could affect tens of thousands of pediatric visits per 

year. 

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Pediatric nurse practitioners and family nurse practitioners are a significant source of 

primary care for children. In addition to meeting stringent standards of education, 

training and licensure in order to qualify as a nurse practitioner, pediatric nurse 

practitioners must also have specialized education, training and knowledge in the care 

of children. The ANA Scope and Standards and Practice has defined pediatric nursing, 

for all registered nurses, as 

 

the protection, promotion, and optimization of health and abilities 

for children of newborn age through young adulthood. Utilizing a 

family-centered care approach, pediatric nursing includes the 

prevention of illness and injury, the alleviation of suffering through 

the diagnosis and treatment of the child’s response, and advocacy 

in the care of children and families. (p.xi)1

The 2004 National Sample Survey of Registered Nurses (NSSRN), conducted every 

four years by the Bureau of Health Professions, US Health Resources and Services 

Administration, notes there were 19,419 advanced practice registered nurses (APRNs) 

who specialized in pediatric care. Of these, membership survey data compiled by 

National Association of Pediatric Nurse Practitioners suggests that roughly 58% (of their 

membership) practice pediatric primary care, while the rest reported practice in 

subspecialties or acute care. NSSRN data reveals another 60,146 APRNs whose 

specialty was family care, which often includes pediatric primary care. 

To preclude these health care professionals from being designated by patients as their 

preferred in-network pediatric primary care provider – as does the current IFR -- would 

be to deny the very rights to patients that the regulatory provision professes to protect, 

that of freedom of choice of health professional. 

ANA recognizes that the interim final regulation follows the letter of the language of the 

ACA, amending Section 2719A(c) of the Public Health Service Act, which refers 

specifically to physicians who specialize in pediatrics as among those who could be 

designated as a child’s primary care provider. While this language creates a required 

element of the implementing regulations, it does not preclude the pertinent Departments 

from recognizing an additional pediatric primary care provider: nurse practitioners who 

also specialize in pediatrics. Indeed, current practice patterns and the needs of the 

pediatric population strongly recommend such an inclusion in the implementing 

regulations. 

The narrow definition of a health care professional reflected in the pediatric provision is 

particularly anomalous, given that the subsequent provision (3), “Patient access to 

obstetrical and gynecological care,” speaks of the “participating health care professional 

who specializes in obstetrics and gynecology,” which would include certified nurse 

 

1

 American Nurses Association, National Association of Pediatric Nurse Practitioners and Society of Pediatric 

Nurses. Pediatric Nursing: Scope and Standards of Practice (2008). Silver Spring, MD: American Nurses 

Association. 

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midwives (another category of advanced practice registered nurse), as well as 

obstetrician-gynecologists (allopathic and osteopathic physicians). 

The proposed regulatory provision also seems to undermine other provisions of the 

ACA that provide incentives for pediatric workforce strengthening and expansion. 

Section 5203, for example, establishes a pediatric specialty repayment program for 

individuals who are willing to practice in a pediatric medical or surgical subspecialty or in 

child mental and behavioral health care (including substance abuse prevention and 

treatment services) full time for at least two years in an underserved area. A “qualified 

health professional” under the provision, includes psychiatric nurses, social workers, 

professional and school counselors, and mental health service professionals with 

training or clinical experience in child and adolescent mental health. It gives priority to 

applicants who are or will be working in a school setting, have a familiarity with 

evidence-based care, and can demonstrate financial need. The loan program is not 

limited to pediatric physicians. 

The IFR estimates that there are 11.8 million individuals under the age of 19 with 

employer-sponsored insurance who are in an HMO plan (Federal Register, 75(123), p. 

37211). It is reasonable to deduce that many other children are covered by individual 

market plans. Among these are infants and toddlers requiring well baby/children care, 

and a growing number of adolescents and young adults with special healthcare needs, 

chronic conditions, and disabilities who need a pediatric primary health care 

professional to coordinate and manage their care. 

In their comprehensive 2005 study, “The Pediatrician Workforce: Current Status and 

Future Prospects,” David C. Goodman, MD, MS, and the American Academy of 

Pediatrics Committee on Pediatric Workforce, note that: 

the growth in training programs for both physician assistants and 

nurse practitioners greatly exceeds primary care physician 

residency growth, and therefore the availability of nonphysician 

clinicians will also grow faster than that of pediatricians. The growth 

in numbers has also been accompanied by an expansion of 

practice independence and prescription authority. Both greater 

numbers and practice autonomy are likely to lead to much larger 

roles of nonphysician clinicians in pediatric medical care. (p.7, at 

http://pediatrics.aappublications.org/cgi/reprint/116/1/e156) 

The number and distribution of pediatric primary care providers must meet the growing 

needs of the country’s youth, including those children who will be among the 32 million 

newly insured individuals under the ACA. 

In sum, it makes no sense, in either policy or practice, to exclude pediatric nurse 

practitioners from the pool of those health care professionals who can be designated as 

pediatric primary care providers. The IFR should be corrected to include primary care 

advanced practice registered nurses, and in particular pediatric nurse practitioners, so 

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as to fully guarantee patient rights and protections and their “choice of health care 

professional,” as is the purported intention of both the law and the IFR. 

ANA is also seeking modification of model language offered in the IFR as guidance to 

plans and issuers required under law to provide notice to participants, beneficiaries, and 

enrollees, to inform them of their rights to certain protections under the ACA. This 

notice requirement and model language appear in subsection (a)(4), “Notice of right to 

designate a primary care provider,” in each of the three iterations of the patient 

protections described in the IFR. The modification recommended is meant to 

incorporate the inclusion of pediatric advanced practice registered nurses, noted above, 

in the notice of rights and protections. 

The language modification ANA is seeking is as follows, in each of the three 

identical provisions:

“(4) Notice of right to designate a primary care provider – (i) In 

general. If a group health plan or health insurance issuer requires 

the designation by a participant, beneficiary or enrollee of a primary 

care provider, the plan or issuer must provide a notice informing 

each participant (in the individual market, primary subscriber) of the 

terms of the plan or health insurance coverage regarding 

designation of a primary care provider and of the rights – 

(A) Under paragraph (a)(1)(i) of this section, that any participating 

primary care provider who is available to accept the participant, 

beneficiary, or enrollee can be designated; 

(B) Under paragraph (a)(2)(i) of this section, with respect to a child, 

that any participating physician health care professional who 

specializes in pediatrics can be designated as the primary care 

provider; and 

(C) Under paragraph (a)(3)(i) of this section, that the plan may not 

require authorization or referral for obstetrical or gynecological care 

by a participating health care professional who specializes in 

obstetrics or gynecology.” 

(ii) [same] 

(iii) Model language. The following model language can be used to 

satisfy the notice requirement described in paragraph (a)(4)(i) of 

this section: 

(A) [same] 

(B) For plans and issuers that require or allow for the designation of 

a primary care provider for a child, add: 

For children, you may designate a pediatrician or nurse 

practitioner who specializes in pediatrics as the primary care 

provider. 

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(C) [same]” 

Section 2711 of the PHS Act, Lifetime and Annual Limits (26 CFR 54.9815-2711T, 

29 CFR 2590.715-2711, 45 CFR 147.126). 

ANA would also like to express concern regarding the reinstatement opportunities for 

people who obtain their coverage in the individual market (Overview on p.37191 of the 

Notice). If an individual reaches their lifetime limit but are still eligible under a group 

plan, he or she would be reinstated. Under an individual plan, though, an individual 

cannot be reinstated if he or she has dropped the coverage or the plan wasn’t renewed. 

This distinction appears counterintuitive; why would someone who was denied further 

benefits – due to a monetary cap – renew or continue paying for their coverage? Failing 

to renew the coverage because it was no longer useful, the individual would not be 

eligible for reinstatement even though the regulation’s other requirements might make 

the plan useful again to that individual. This seems like a no win situation for these 

people. ANA recommends that this provision be reconsidered, such that 

reinstatement would be equally available to both group and individual market 

beneficiaries, participants, or enrollees.

Section2712 of the PHS Act, Prohibition on Rescissions (26 CFR 54.9815-2712T, 

29 CFR 2590.715-2712, 45 CFR 147.128). 

Under the “Prohibition of Rescissions” provisions of the ACA, prior notice is required 

when coverage is rescinded (for permissible reasons), and that coverage – whether in 

the group of individual market -- cannot be cancelled without this prior notice. This, in 

itself, is a laudable provision; however its implementation requires reconsideration. The 

IFR says that a 30-calendar-day notice to an individual is adequate opportunity to 

explore rights to protect or to find new coverage. 

This timeline is inadequate and unreasonable for many beneficiaries, participants, or 

enrollees. Insurance plans are complex, even in the new construct under the ACA, in 

which plans must provide clear and comparable summaries to applicants and 

beneficiaries, participants, or enrollees. Many people do not have access to the 

Internet, which might otherwise help to facilitate such comparisons in such a short time 

span. Furthermore, it seems unlikely that a plan or issuer would make the decision to 

discontinue coverage or overall business in fewer than 30 days; their presumed internal 

timeline suggests that more time would be available to their beneficiaries, participants, 

or enrollees, to make decisions, as well. 

ANA recommends that the rights to protect existing coverage – by contesting the 

rescission, or to find new, alternative coverage should be extended to 90 days. 

Less time than this would undermine the very protection that the notice provision is 

intended to provide, because it would set unreasonable deadlines for people to act on 

complex financial and personal matters. 

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Conclusion. 

In summary, the main pieces of the IFR implementation provisions make sense and 

emphasize that the federal provisions are a floor and that stricter state provisions (or 

state provisions where the federal government is silent) apply. ANA supports these 

remaining provisions of the IFR, and urges the pertinent Departments to reconsider 

those three concerns iterated above. 

We appreciate the opportunity to comment on this important rule. If we can be of further 

assistance, or if you have any questions or comments, please feel free to contact 

Cynthia Haney, JD, Sr. Policy Fellow, at 301-628-5131 or cynthia.haney@ana.org. 

Sincerely, 

Mary Jean Schumann, MSN, MBA, RN, CPNP 

Chief Programs Officer 

American Nurses Association 

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