Comments to HHS et al. re: Non-Discrimination Clause and Insurer Contracting with Providers

June 10, 2014

Victoria A. Judson
Internal Revenue Service
1111 Constitution Ave, NW
Washington, DC 20210

Phyllis C. Borzi
Department of Labor
200 Constitution Ave., NW
Washington, DC 20224

Marilyn Tavenner
Centers for Medicare and Medicaid Services
7500 Security Boulevard
Baltimore, MD 21244

Re: Request for Information Regarding Provider Non-Discrimination (CMS-9942-NC)

Dear Mses. Judson, Borzi, and Tavenner,

The Academy of Nutrition and Dietetics appreciates the opportunity to submit comments to your respective agencies (the “Departments”) related to the March 12, 2014 “Request for Information Regarding Provider Non-Discrimination.” With over 75,000 members comprised of registered dietitian nutritionists (RDNs),1 dietetic technicians, registered (DTRs), and advanced-degree nutritionists, the Academy is the largest association of food and nutrition professionals in the United States committed to improving the nation’s health through food and nutrition across the lifecycle. The Academy’s member RDNs independently provide nutrition care services, including Medical Nutrition Therapy,2 to individuals with a wide variety of disease states and chronic conditions. Such services are covered benefits under Medicare (diabetes, renal disease, post-kidney transplant upon referral from a physician), some state Medicaid programs, and many private payers.

The Academy supports the Departments’ interpretation of section 2706(a) of the Public Health Service Act (as added by section 1201 of the Affordable Care Act) (the “Non-Discrimination Clause”)3 enunciated in the Frequently Asked Question (FAQ) issued April 29, 2013.4 Many patients across the country now have better access to clinically effective and cost-effective nutrition care services provided by expert registered dietitian nutritionists as a result of the Non-Discrimination Clause, which effectuates the primary care-coordinated, patient-centered care at the core of the Affordable Care Act. However, patients and insurers will be unable to realize the benefits of the Non-Discrimination Clause if it facilitates and requires the provision of services that are not medically necessary, not clinically efficacious or experimental. Accordingly, the Academy supports an interpretation of the Non-Discrimination Clause that is “consistent with reasonable medical management techniques specified under the plan with respect to the frequency, method, treatment or setting for an item or service.”

Benefits of RDN-provided MNT

Insurers in many states implementing the Affordable Care Act and the Non-Discrimination Clause have begun credentialing and contracting directly with registered dietitian nutritionists, in recognition of the profession’s demonstrated value and efficacy. Many benefit plans that previously excluded registered dietitian nutritionists as independent providers have revised their policies to enable patients and clients to receive covered evidence-based services that improve health and reduce health care costs. RDNs are uniquely qualified to provide many of preventive services recommended with Grades A or B by the United States Preventive Services Task Force, including intensive behavioral therapy for patients with obesity and risk factors for cardiovascular disease.

The Institute of Medicine recognizes that “the registered dietitian [nutritionist] is currently the single identifiable group of health-care professionals with standardized education, clinical training, continuing education and national credentialing requirements necessary to be directly reimbursed as a provider of nutrition therapy.”5

The latest research regarding the effectiveness of RDN-provided MNT includes:

  • Medical nutrition therapy provided by registered dietitians as part of a health plan is an effective, low-cost way of helping people safely lose weight. The cost of the MNT benefit to the health plan was $0.03 per member per month6
    • Overweight or obese adults participating in a medical nutrition therapy benefit sponsored through their insurer were compared with individuals who did not participate. After 2 years, the adults who received the MNT benefit provided by a registered dietitian were twice as likely to achieve a clinically significant reduction in weight, experience greater average reductions in weight, and were more likely to exercise more.
  • Primary care physicians identify dietitians as the most qualified providers to care for obese patients7
    • In a national cross-sectional survey of 500 primary care physicians, fewer than half (44%) thought they achieved success by helping their obese patients lose weight. Respondents identified dietitians as more qualified than primary care physicians, behavioral psychologists or nurses to help obese patients lose or maintain weight.
  • Community-based, point-of-testing nutrition counseling provided by registered dietitians (or a registered nurse under the supervision of a registered dietitian) may reduce risk factors for obesity and related chronic diseases among older adults8.
    • During a 3-year intervention, individual screening and point-of-testing counseling sessions (20-40 minutes each) were offered every 6 months to 159 subjects ages 65 years and older. Significant improvements in BMI, serum LDL cholesterol, fasting blood glucose and diastolic blood pressure were noted for participants who attended three or more counseling sessions. Participants who attended all six sessions had the most favorable results in each value.

Ambiguity of “Scope of Practice” Provisions

The Academy urges the Departments to provide guidance to insurers and states in interpreting the ambiguities and breadth of various professions’ scopes of practice in state licensure statutes. Although scopes of practice for numerous professions empower the respective practitioners to provide nutritional counseling, it is unclear whether regulatory boards or insurers or patients interpret the terms similarly, resulting in substantial confusion and ambiguity.

For example, both Arizona9 and Nevada10 license non-physician homeopaths with a scope of practice that includes nutrition therapy (although as noted below, the discipline lacks a sound evidentiary basis). In other states, such as Illinois and Louisiana, athletic trainers are technically able to provide some forms of nutritional counseling. Illinois’ statute states that, “Specific duties of the athletic trainer include but are not limited to . . . [c]ounseling of athletes on nutrition and hygiene.”11 Louisiana Athletic Trainers carry out the “practice of prevention[, which includes] but is not limited to . . . [c]ounseling and advising supervisors, coaches, and athletes on physical conditioning and training such as diet . . . .”12 In neither state is it clear whether there are limits as to the extent of nutrition counseling that could be provided or what rubric insurers might use to cover complex medical-level nutrition counseling only by health care practitioners and not athletic trainers. More troublingly, in Colorado insurers could be obligated to contract with licensed chiropractors for nutrition counseling while not contracting with expert registered dietitian nutritionists (as they are not currently not licensed by the state). This perverse result is likely to occur in Colorado despite the fact that one could become a chiropractor and provide nutrition counseling without ever having taken a single course in dietetics or nutrition,13 simply because the scope of practice for chiropractors in Colorado permits “the use of sanitary, hygienic, nutritional, and physical remedial measures for the promotion, maintenance, and restoration of health, the prevention of disease, and the treatment of human ailments.”14 Clearly, states and insurers must retain some authority to reasonably avoid contracting with unqualified or ambiguously qualified providers.

Insurers Should Not Be Obligated to Contract with Non-Evidence-Based Providers

The Academy is committed to evidence-based patient-centered care, and urges the Departments to adopt an interpretation of the Non-Discrimination Clause that allows group health plans and health insurance issuers to contract with providers based upon their reasonable determination of providers’ ability to deliver scientifically validated, efficacious care. An obligation to contract should not, however, be imposed simply because a particular class of licensed practitioners is seeking a way to pay for expensively-purchased degrees and credentials.15 When implemented, the provision should safeguard consumers against services delivered by providers who have not demonstrated clinical efficacy in delivering such services.

When ascertaining which providers deliver sufficiently evidence-based services, it is important not to simply conflate the whole spectrum of alternative and complementary medicine as lacking an evidentiary basis. The Academy’s commitment to improving the nation’s health through food and nutrition is evidenced in part by many of our members who utilize a broad range of holistic modalities to provide personalized nutrition care as part of their commitment to evidence-based integrative and functional medicine. In requiring contracting with certain providers, is critical that the Departments differentiate between natural therapies and disciplines that have been scientifically demonstrated as effective and those that have not. Notably, numerous evidence reviews conclude there is little evidence to support the effectiveness of naturopathic or homeopathic care, including:

  • Ayurvedic treatments for diabetes: “There is insufficient evidence at present,” they concluded, “to recommend the use of these interventions in routine clinical practice.”16
  • Homeopathy: “[W]e found insufficient evidence from these studies that homeopathy is clearly efficacious for any single clinical condition. . . . Our study has no major implications for clinical practice because we found little evidence of effectiveness of any single homeopathic approach on any single clinical condition."17
  • Naturopathy: “Some of the individual therapies used in naturopathy have been researched for their efficacy, with varying results. The complex treatment approaches that naturopathic physicians often use are challenging to study, and little scientific evidence is currently available on overall effectiveness.”18

As other country’s governmental experts recently reviewed homeopathy and whether insurers should be required to provide coverage for it, they have questioned its effectiveness and reliability and have either declined to extend coverage or ended coverage:

  • Australia’s National Health and Medical Research Council released its long-awaited review of homeopathy, concluding that “there is no reliable evidence that homeopathy is effective for treating health conditions.”19
  • United Kingdom National Health Service: “There is no good-quality evidence that homeopathy is effective as a treatment for any health condition.” In addition, “[a] 2010 House of Commons Science and Technology Committee report on homeopathy said that homeopathic remedies perform no better than placebos, and that the principles on which homeopathy is based are 'scientifically implausible'. This is also the view of the Chief Medical Officer, Professor Dame Sally Davies. 20

The Academy appreciates the opportunity to comment on this important information collection; please contact either Jeanne Blankenship at 202/775-8277, ext. 6004 or by email at or Pepin Tuma at 202/775-8277, ext. 6001 or by email at with any questions or requests for additional information.


Jeanne Blankenship, MS, RDN Vice President, Policy Initiatives and Advocacy
Academy of Nutrition and Dietetics

Pepin Andrew Tuma, Esq.
Director, Regulatory Affairs
Academy of Nutrition and Dietetics

1 The Academy recently approved the optional use of the credential “registered dietitian nutritionist (RDN)” by “registered dietitians (RDs)” to more accurately convey who they are and what they do as the nation’s food and nutrition experts. The RD and RDN credentials have identical meanings and legal trademark definitions.
2 “Medical Nutrition Therapy is an evidence-based application of the Nutrition Care Process. The provision of MNT (to a patient/client) may include one or more of the following: nutrition assessment/re-assessment, nutrition diagnosis, nutrition intervention, and nutrition monitoring and evaluation that typically results in the prvention, delay, or management of diseases and/or conditions.” CITE definition of terms list
3 Cite PHS Act 58 Stat. 682, Chapter 373
4 See FAQs about Affordable Care Act Implementation Part XV, available at and
5 Committee on Nutrition Services for Medicare Beneficiaries. “The Role of Nutrition in Maintaining Health in the Nation’s Elderly: Evaluating Coverage of Nutrition Services for the Medicare Population.” Washington, DC: Food and Nutrition Board, Institute of Medicine; January 1, 2000 (published).
6 Bradley DW, Murphy G, Snetselaar LG, Myers EF, Qualls LG. The incremental value of medical nutrition therapy in weight management. Managed Care. January 2013: 40-45.
7 Bleich SN, Bennett WL, Gudzune KA, Cooper LA. National survey of US primary care physicians’ perspectives about causes of obesity and solutions to improve care. BMJ Open 2012:2:e001871. doi:10.1136/bmjopen-2012-001871.
8 Walker MH, Murimi MW, Kim Y, Hunt A, Erickson D, Strimbu B. Multiple point-of-testing nutrition counseling sessions reduce risk factors for chronic disease among older adults. Journal of Nutrition in Gerontology and Geriatrics, 31:2, 146-157.
9 Arizona 32-2901(19) ("Nutrition" means the recommendation by a licensee of therapeutic or preventative dietary measures, food factor concentrates, fasting and cleansing regimens and the rebalancing by a licensee of digestive system function to correct diseases of malnutrition, to resolve conditions of metabolic imbalance and to support optimal vitality.”)
10 NAC 630A.023.
11 225 ILCS 513(4)(C).
12 Louisiana RS 37:3302(1).
13 Colorado RS 12-33-111(1)(a).
14 3 CCR 707-1(7)(C).
15 The American Association of Naturopathic Physicians, an advocacy organization for licensed naturopaths (, supports an expansive reading of the Non-Discrimination Clause because many students attending naturopathic school graduate with substantial debt: “With students now graduating $200K+ in debt—our profession also needs the choice for new and older graduates who want to take insurance to be able to.”
17 Barnes, J, Resch, K and Ernst, E. Homeopathy for post-operative ileus? A meta-analysis. J Clin Gastro 1997; 25(4): 628-633. (Internal citations omitted.)
18 National Institutes of Health National Center for Complementary and Alternative Medicine. “Naturopathy: An Introduction.” Accessed June 9, 2014 at