Provider statute vexing regulators
Posted on Sunday, October 8, 2006
Arkansas is not the first state to have an “any willing provider” law, but it could be a trailblazer in enforcement of such legislation, which is changing the health-care landscape.
“We want to make sure we do the right thing in Arkansas, because other states are going to be looking to us,” said Julie Bowman, Arkansas’ insurance commissioner. “We ran into a brick wall when looking for something just like ours.” Passed in 1995 but not enforced till 2005, the Patient Protection Act requires an insurer to open its network to any hospital, physician or other provider meeting entry requirements. A federal appeals court last year ended a 10-year deadlock on the law, but enforcement vexes the Arkansas Insurance Department.
Supporters had said the law would give patients more choice over where they received care, without paying out-of-network fees. Critics, including Arkansas Blue Cross and Blue Shield, the state’s dominant insurer, said the law would raise health-care costs.
Arkansas regulators are attempting to add to a list of health-care providers covered by the law.
That hasn’t been attempted in states with similar statutes, according to Booth Rand, associate counsel for the Arkansas Insurance Department.
The department has proposed adding sleep apnea clinics and magnetic resonance imaging, or MRI, clinics to the list.
Linda Huggins, office manager of Chenal MRI, would like the law to apply to the Little Rock clinic.
She said the clinic specializes in same-day scheduling, adding that “usually we’re a lot quicker” than hospitals.
But even if the clinics are added to the list, an insurer doesn’t have to offer access to its network. That’s only required if the service of a comparable provider is included in the network.
Arkansas’ law also has posed a challenge to the department by explicitly prohibiting monetary discrimination by insurers against health-care providers of the same type. For example, an insurer must pay all chiropractors the same reimbursement rate for the same services, department officials said.
Bowman is concerned this could mean the department must examine all contracts between insurers and providers.
Several states reported little or no enforcement of their any willing provider laws.
Virginia’s Bureau of Insurance never has taken enforcement action under its 1983 law, the State Corporation Commission said.
Up to nine states have any willing provider laws that apply to physicians and other providers, Rand said. Many other states have such laws that apply only to pharmacies.
Kentucky’s 1998 law is more similar to Arkansas’ law than any other state’s. The Kentucky Office of Insurance, like Arkansas’ Insurance Department, has the authority to add to the list of providers covered by its law, but has never done so. “If [adding a provider ] came up, we would probably tell the providers to seek legislation to amend the definition of ‘health-care provider, ’” said Ronda Sloan, communications director for the office.
Bowman worries that adding providers such as MRI clinics puts the department on unfamiliar turf: judging health-care quality.
Hospitals have objected to the proposal, contending that the clinics’ standards are inferior to theirs. The clinics have countered that the hospitals objected because adding clinics would create more competition, Rand said.
“We’ve never been into judging or looking at quality standards for providers or equipment or any of that,” Bowman said. “We don’t have the expertise.” In September, Arkansas’ joint Public Health, Welfare, and Labor Committees of the House and Senate agreed to form a subcommittee to advise the department on implementing the law and an enforcement act passed last year. It is reviewing the proposed rule to add the clinics.
Kentucky’s regulators have experience judging health-care quality to decide if a law has been violated, but have yet to do so in matters related to any willing provider, said D. J. Wasson, acting deputy executive director for Kentucky’s insurance office.
If such issues were to arise — if, for example, an insurer denied a hospital access to its network because of bogus quality standards — Wasson said her department would consult with its staff attorneys and nurses and collectively make a judgment.
But Bowman says her department lacks resources that Kentucky’s office has to judge quality, such as nurses on staff.
Quality isn’t the only issue for the Arkansas department.
As mentioned, regulators believe the law may require that all health-care providers of the same type be given the same terms and conditions by insurers. Those can include bonus offers, incentives, co-payment requirements, quality control requirements and credentialing requirements.
But how should those contracts be checked ?
“Is that our responsibility ?” Bowman said. “Or do we wait until there is a complaint ?” Wasson, the Kentucky official, said her office monitors insurance networks by investigating complaints from providers denied access.
In most situations, a complaint-driven strategy should be a “fairly effective” way to enforce any willing provider laws, said Glen Mays of the University of Arkansas for Medical Sciences.
“If there are hospitals and physicians being excluded [by an insurer ], they wouldn’t be shy at all with going to insurance departments,” he said.
In any case, insurers mostly have been cooperative since the law went into effect, Arkansas regulators said. The same is true in Kentucky.
But Arkansas likely will face more challenges in the future, Rand said, as more providers seek to be covered by the law.
Legislators have no way of knowing the medical specialists from whom the public one day will seek treatment, he said.
“They basically gave power to the insurance department to add [providers ] by rule, so they didn’t have to go back every two years” and add them, Rand said.
In Arkansas, eight to 10 complaints have been made to the department so far. The department is not aware of any health insurer that has refused to comply with the law, spokesman Charlye Woodard said.
It has had no enforcement proceedings, having resolved most concerns by meeting with health-maintenance organizations or providers.
FEEDBACK:
Something to say about this topic? Submit a Letter to the Editor online
