‘Any Willing Provider’: A Toothless Tiger?

Friends and foes of “any-willing-provider” legislation don’t line up as predictably as they once did. And even in the states that have enacted such laws applying to physicians, AWP is turning out to be a less ferocious beast than its backers had hoped.

“We’re not in favor of ‘any willing provider’ legislation because it is anticompetitive. Health plans should be able to determine the number and distribution of physicians necessary to care for their enrollees. No one has a divine right to work wherever they want.”

Just another managed care company bigwig denigrating “any willing provider” laws? No, the speaker quoted above is James S. Todd, M.D., executive vice president of the AMA in Chicago.

Surprised? You shouldn’t be. As Todd’s remarks indicate, the battle lines are growing fuzzier in the combat over AWP legislation. Traditionally favored by physicians and opposed by the managed care industry, these laws require a managed care plan to accept into its network any provider with specified qualifications who is willing to accept the plan’s terms and reimbursement rates. While some state medical societies continue to agitate for passage of AWP legislation, many physician groups are backing away from this rancorous clash with managed care companies. The AMA is shifting its attention to other fronts, such as fair treatment of patients and physicians by managed care plans. And some physicians who are forming networks and contracting with HMOs oppose AWP because they believe a system of selective health networks gives them a competitive advantage.

Vying for the lion’s share

Make no mistake: Proposals to pry open health plans’ networks continue to be hotly contested in many state capitals around the nation. Boiled down to its essentials, the argument over “any willing provider” laws reflects a fundamental conflict over managed care itself. Physicians advocating AWP legislation claim that managed care’s emphasis on the bottom line threatens quality care and patients’ ability to choose their doctors freely. Such laws, they insist, will restore the emphasis in the practice of medicine to patient care. Advocates also hope that AWP laws will redress the imbalance between providers and the large managed care companies that have lately been winning the lion’s share of the health care market. Physicians’ fear of economic loss, clearly, is one impetus for these bills. By requiring health plans to take them into their networks, physicians seek to preserve their patient bases and stem the loss of patients to managed care organizations.

Insurers, HMOs and various business groups, on the other hand, argue that health plans must have the freedom to select and limit their providers in order to control costs, maintain quality and ensure a steady flow of patients to physicians. “Any willing provider” laws are “unnecessary governmental interference in our ability to address the needs of employers and employees who are looking for cost-effective, quality-focused health care,” says Norine Yukon, executive director of Prudential Health Care Systems in Little Rock, Ark. Pointing to high satisfaction rates among employees who have chosen HMOs for their health care coverage, she contends that no new laws are needed to regulate a system that has obviously worked well.

Sharon F. Canner, vice president of human resources policy for the National Association of Manufacturers in Washington, D.C., is more blunt: “‘Any willing provider’ is a last-ditch effort by doctors to hold the line against managed care,” she asserts.

Less than meets the eye

Currently, Congress is neither considering nor planning to consider AWP legislation. But there is a lot of activity at the state level. To date, 24 states have enacted some type of AWP law. While that figure may suggest impressive gains for physicians who support AWP, a closer look reveals a different story.

Many of these laws, in fact, offer no protection for physicians seeking entry onto managed care panels, since they apply only to other classes of providers, such as pharmacists or chiropractors. For instance, AWP laws in 11 of those 24 states affect only pharmacists — a tribute to that profession’s considerable political clout in state capitals. Of the remaining 13 states with AWP laws, only 11 have statutes that affect physicians. And some of those states — Idaho and Wyoming, for example — have so little managed care activity that passage of an AWP law there is essentially an empty victory, says Guy D’Andrea, director of state services for the Washington, D.C.-based American Association of Health Plans, which opposes AWP laws.

Another reason AWP laws don’t pack as much clout as might be expected is that only a few of them extend to all types of managed care entities. Most apply only to preferred-provider organizations, for instance. Thus, in several states, HMOs and insurance-based provider networks are free to disregard the law.

While AWP bills have been introduced in state legislatures at a dizzying pace in recent years, the number of states actually enacting such laws appears to be waning. In 1994, nine new AWP bills became law. But last year, out of 79 AWP measures under consideration by state legislatures, just two were enacted: one in Texas that applies only to pharmacists, and one in Arkansas, which is now tied up in litigation. This year, 24 states have considered a total of 65 different AWP proposals, but D’Andrea notes that few of these bills are moving quickly through the legislatures, and he expects only one or two to become law.

“I think 1994 was the high-water mark of activity in this area,” says D’Andrea.

Where’s the beef?

The debate over the merits of AWP proposals continues to generate publicity. But far less attention has been paid to what happens after an AWP bill becomes law. How much protection do these laws really provide physicians?

The answer seems to be “not much,” according to state medical society lobbyists. Since they tend to be very controversial, most AWP bills have a rough ride through the political wringer known as the legislative process. These measures, typically, are altered many times by amendments and other political compromises before finally becoming law. The result, often, is a law with ambiguous, watered-down provisions that are difficult to interpret and enforce.

For example, many AWP laws apparently permit health plans to set the terms and conditions under which providers must be permitted to join their networks. That allows a plan to use geographic criteria in setting up provider panels, enabling it to stop accepting new applicants when it fills its quota in a particular area. Arkansas’ newly enacted law, for instance, requires plans to accept any provider who agrees to comply with the plans’ “terms and conditions.” Since that language “can be read in lots of ways,” says Prudential’s Yukon, “we believe it can be interpreted as providing us with geographic access options.”

Yes, Virginia, there are holes

Virginia’s AWP law provides the best example, perhaps, of a statute riddled with holes. Enacted in the early 1980s, it provides that PPOs may not exclude from their networks physicians and other providers who are “willing to meet the terms and conditions offered” to them. Further, those contract terms can’t “discriminate unreasonably” against providers. That sounds like the red carpet treatment for physicians seeking to sign up with a PPO. It’s not, for several reasons.

For starters, notes Madeline I. Wade, director of legislative affairs for the Medical Society of Virginia in Richmond, the law affects only PPOs, meaning that HMOs and employers who self-fund their health plans are “free to discriminate.” Second, the law only requires plans to accept those physicians to whom they offer contracts — it doesn’t force them to offer contracts to all physicians in the first place. Third, “terms and conditions” aren’t defined, giving plans the green light for creativity. (Virginia courts have interpreted this clause as allowing PPOs wide latitude in establishing selection criteria.) Fourth, since only “unreasonable” discrimination is prohibited, the law seems to imply that a PPO is on solid ground in excluding physicians so long as it has a good business reason. (Virginia courts have held it is not unreasonable discrimination to exclude physicians who are expected to generate fewer patient visits than other providers, or a doctor who was previously disciplined for professional misconduct.) Fifth, the statute doesn’t give rejected applicants the right to appeal. As if all these flaws aren’t enough, Wade also points out that the state insurance commission has no authority to enforce the law.

“Providers are having a hard time getting into networks, particularly in northern Virginia, because the statute is so badly written,” says Wade.

Virginia isn’t alone. “The reality is, there’s always a way around ‘any willing provider’ laws,” says Connie Barron, assistant director of legislative affairs for the Texas Medical Association in Austin. “Plans can make their credentialing criteria so extensive they weed out tons of providers.”

Some physicians, however, are fighting back. Two Virginia podiatrists, a father and son who practice together, sued a health plan in federal court after their PPO applications were rejected. They claimed a violation of the state’s AWP law. Rather than slog through a messy court fight, the plan quickly agreed to add them to its panel.

The difficulty of enacting meaningful “any willing provider” legislation has caused physician groups to shift their attention to so-called “patient protection” acts. This legislation varies from state to state, but typically includes a wide range of provisions — for example, requiring health plans to disclose information to enrollees about financial arrangements with providers, plan benefits and the right to appeal treatment decisions, and requiring plans to explain credentialing criteria to providers and why they were denied entry to, or dropped from, a provider network.

Managed care organizations, not surprisingly, oppose these measures, labeling them “back-door” AWP legislation and “physician protection acts” in disguise.

“Absolutely not,” says the AMA’s Todd. “That’s a cynical way to try to discredit them. We would call them truth in advertising. Patients deserve to know what benefits they are getting, and what economic incentives doctors have to give more or less care. Similarly, physicians have the right to know why they weren’t accepted into a plan.”

Although still in their infancy, patient protection acts are sparking interest in a number of state legislatures. Last year, such bills were introduced in more than 25 states and were enacted, in modified form, in Maryland and Oregon. This year, 20 states have already considered 44 patient protection bills.

There is evidence, in some states at least, that two of the health care jungle’s most formidable beasts, managed care companies and organized medicine, are purring toward a compromise over these proposals. In Texas, for instance, after Governor George W. Bush vetoed last year’s Patient Protection Act, both sides endorsed an alternative solution: The insurance commissioner issued a wide range of rules governing patient disclosure, physician selection and network participation. Says the TMA’s Barron: “We’ll be watching to see if health plans comply. If these rules fix the problems, we’ll be thrilled and won’t need any bill. Otherwise, we’ll be back.”

David L. Coleman is a business and health care attorney in West Hartford, Conn. He is the author of The Human Resources Problem-Solver.

States with ‘any willing provider’ legislation that affects physicians

Backers of “any willing provider” laws hoped they would effectively assure physicians entry into managed care networks otherwise closed to them. But once on the books, such laws often prove disappointing.