The Provider-Payer Battle

There is a medical billing tool at your disposal in the escalating battle between insurance companies and providers, which is known as “Any Willing Provider” laws.  An extremely brief history that leads us to this article includes:

  • Payers lowering contracted reimbursement.
  • Payers dropping contracts with some providers.
  • Payers refusing to allow many providers to contract.
  • Payers lowering “out-of-network” (OoN) benefits and dramatically increasing OoN deductibles in an effort to discourage use of OoN providers.
  • Increasing number of plans that no OoN benefits for some or all services except in the case of an emergency.

*There are obviously many other key milestones in the escalating battle between healthcare providers and insurance companies, but these are the critical ones to know for this article.

“Any Willing Provider” laws, also known as “Any Authorized Provider” laws, are state statutes that require health insurance companies to allow any provider to contract with its network, as long as it meets certain requirements.

These laws prohibit limiting membership based on geography or other criteria, again as long as the provider meets the criteria set by payer.  Some states have very broad laws wherein any licensed provider is governed by these laws and has the right to contract, while others specify the types of providers (doctors, hospitals, ambulatory surgery centers, therapists, etc.) that are governed by these laws and are able to contract.  Some state laws are very limited in scope and specify only a small number of types of providers or a single provider class like pharmacies.

Providers Who Benefit

The types of providers most likely to benefit from these types of laws are the facilities and physicians that would willingly take contracts from insurers with whom they cannot get contracts.  Obvious examples of providers that would benefit include most facilities or IDTF’s like ambulatory surgery center billing, radiology imaging center billing, and laboratory billing services.  Emergency physicians generally are entitled to payment even if they are not contracted and non-emergency physicians at large facilities like hospitals can typically obtain contracts.  These laws may be also benefit some facility-based providers like some anesthesiologists if they are working at surgery centers or in other environments where cases are not emergent and not required to be paid by law and the physician/facility would like to see patients for a network to which they do not have access.  A couple examples to help illustrate how this plays out:

Laboratory Billing, Diagnostic Imaging Center Billing, and Urgent Care Billing

Many laboratories, whether they are startups or have been in business for many years, have a very difficult time with lab billing because among other reasons it is difficult to get contracts with payers.  Many insurers have closed networks and do not accept new laboratories for contracts.  Many of these payers also provide no OoN benefits, and so a standard part of laboratory billing is to have a significant percent of claims never reimbursed.  Laboratories are completely dependent upon referrals and most referral sources want to send all of their patients to one or two laboratories, which means that in order to get the business, the laboratory may need to be able to take all the patients for that practice.  Therefore, the lab is faced with an all or nothing scenario.  They want the business, but if they take it, they must take it all, which means processing samples knowing when they perform the laboratory billing a large percent of the samples will be unreimburseable since they are out of network and cannot get paid OoN.  This is a perfect example where if there is a law of this type in their state, they may be able to get contracted and then are free to market to any referral source knowing that they can get paid for the samples they process.  The scenario is identical for imaging center billing services.  Urgent care centers often would like to take as many patients as possible and are dependent upon the payer mix of whatever insurance the patients in their geography have.  Therefore, many patients will turn away at the front desk if they are not in-network, or will go online to find an urgent care center in their network.  Therefore, most urgent care centers would like to contract with as many insurers as possible and often payers are not willing to cooperate, which makes urgent care billing much more complicated.

Ambulatory Surgery Center Billing

It is sometimes the same for ambulatory surgery center billing, although in many cases the ASC is owned by the physicians who refer business to it, and therefore they can control the referral sources (their offices) and send only patients for whom they know that they can get paid.  In that case, it is less about doing cases that won’t get paid as it was in laboratory billing, than it is about being able to refer more cases to the ASC where they know the billing will be successful.

Anesthesia Billing and Pathology Billing

Some ancillary providers like pathologists and anesthesiologists may also find themselves in this same situation when it comes to their billing.  If they see cases at a facility like an ASC, they may also be limited in their ability to get paid by some insurers.  Many facilities will expect that the anesthesiologist in exchange for getting all of the cases at the ASC for example will see all patients, even if they when the anesthesia billing is performed later they can get reimbursed.  Pathologists also don’t know in advance what insurance the patient has, and therefore, has little option but to do the study and then hope their pathology billing will be successful and get them paid.  This is often not the case for some payers where they are looking to discourage utilization by reducing access to care and therefore, do not want to contract with ambulatory surgery centers and related providers like anesthesiologists and pathologists.

ERISA

Most insurance laws do not govern “self-funded” insurance plans (ERISA), and these “Any Willing Provider” statutes are no different.

States Laws

27 states currently have “Any Willing Provider” laws on the books, including: Alabama, Arkansas, Connecticut, Delaware, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, North Carolina, North Dakota, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin and Wyoming.

Many of these laws have been in place for decades, while some have been enacted as recently as 2013 and 2014.  A number of states have proposed in recent years similar laws, including Massachusetts, Mississippi, New Hampshire, and Pennsylvania.  The governor of Massachusetts vetoed the law that made it through the legislature.

What To Do

Engage a good laboratory billing company that is knowledgeable in ways that can help improve your reimbursement.  Utilize the help of a healthcare attorney that is knowledgeable in reimbursement and revenue cycle management.

Statute Applicable Providers / Notes Enacted
Alabama medical billing
Alabama Code 1975 § 22-6-158 Doctors, hospitals, and any Medicaid provider. 2013
Alabama Code 1975 § 27-45-3 Pharmacies 1988
Arkansas medical billing
Arkansas Code Ann. §§23-99-201—209 All providers 1995 (law upheld in 2005)
Arkansas Code Ann. §§23-99-801—803 Broad range of providers 2005, 2009
Connecticut medical billing
Connecticut Gen. Stat. Ann. §38a-471 Pharmacies 1958, 1981, 1982
Delaware medical billing
18 Del. Code §7303 Pharmacies 1994, 1995
Georgia medical billing
Georgia Code Ann., § 33-20-16 Doctors, dentists, podiatrists, and “every health care provider within a class approved by the health care corporation.” 1976
Idaho medical billing
Idaho Code Ann. § 41-3927 All providers 1994, 1997, 1998
Illinois medical billing
215 Illinois CS 5/370h Non-institutional providers 1937, 1985, 1998
215 Illinois CS 134/72 Pharmacies 2000
Indiana medical billing
Indiana 27-8-11-3 All providers 1984, 1994, 1996, 1998, 1999
Kentucky medical billing
Kentucky RS § 304.17A-270 All providers 1998
Kentucky RS § 304.17A-171 Chiropractors 1996
Kentucky RS § 304.17C-020 All providers covered by the limited health benefit plan 2002
Kentucky RS § 304.17A-505 Requires carriers to inform enrollees that providers have a right to become members of the carriers’ networks if certain conditions are met. 1998, 2000, 2010
Louisiana medical billing
Louisiana SA-R.S. 22:2181 All providers to contract with the Louisiana State University HMO 1997, 1999, 2008, 2012
Maine medical billing
24-A Maine R.S.A. § 4317 Pharmacies 2009, 2011, 2012, 2013
Massachusetts medical billing
Massachusetts G.L.A. 176D § 3B Pharmacies 1994
Minnesota medical billing
Minnesota S.A. § 62Q.14 All providers for fertility services, family planning services not including abortion, and testing for STIs and HIV/AIDS 1994
Mississippi medical billing
Mississippi Code Ann. § 83-9-6 Pharmacies 1997
Mississippi Code Ann. § 83-43-13 Dentists 1962
Mississippi Code Ann. § 43-11-41 Residents in LTC’s choosing pharmacies 2007
Missouri medical billing
V.A.M.S. 376.325 Doctors 2013
V.A.M.S. 198.530 LTC residents for care in their own home 1999
New Hampshire medical billing
New Hampshire Rev. Stat. §420-B:12 Pharmacies 2008
New Jersey medical billing
New Jersey S.A. 17:48-6j Pharmacies 1993, 1999
North Carolina medical billing
North Carolina G.S.A. § 58-51-37 Pharmacies 1993
North Dakota medical billing
North Dakota CC, 26.1-36-12.2 Pharmacies 1989
South Carolina medical billing
South Carolina Code 1976 § 38-71-147 Pharmacies 1994, 1997
South Dakota medical billing
South Dakota CL § 58-18-37SD Initiated Measure 17
(2014 ballot initiative, passed, Yes votes: 61.8%)
Pharmacies 19902014
Tennessee medical billing
Tennessee C. A. § 56-7-2359 Pharmacies 1998, 2001
Texas medical billing
V.T.C.A., Insurance Code § 1579.108 Hospitals within a limited region 2007, 2009, 2011
Utah medical billing
Utah C.A. 1953 § 31A-22-617 All providers 1985, 1993, 1994, 2000, 2001, 2002, 2003, 2005, 2007, 2008, 2009, 2013
Virginia medical billing
Virginia Code Ann. § 38.2-3407 Applies to a broad range of providers 1986, 2008
Virginia Code Ann. § 38.2-3407.7 Pharmacies 1994, 1995, 2010
Virginia Code Ann. § 38.2-4209 Applies to a broad range of providers. 1986, 1999
West Virginia medical billing
West Virginia Code, § 33-25G-4 Doctors and behavioral health 2012
Wisconsin medical billing
Wisconsin S.A. 628.36 All providers 1975, 1983, 1985, 1987, 1989, 1991, 1997
Wyoming medical billing
Wyoming S.1977 § 26-34-134 All providers 1995
Wyoming S.1977 § 26-22-503 All providers 1985, 1990, 1993, 1995

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Legal disclaimer: Apache Health is engaged in the business of healthcare revenue cycle management analytics.  We offer information about regulations, rules, and industry practices relating to compliance.  Apache has researched that subject and has set forth the results of that research herein.  Apache Health is not a law firm and we do not offer legal advice.  Apache does not guarantee the completeness nor the accuracy of its research.  You should consult with your qualified healthcare attorney.