|
The following Advisory Opinion is
to advise the reader of the current position of the Kentucky
Department of Insurance ("the Department") on the specified issue.
The Advisory Opinion is not legally binding on either the Department
or the reader.
Kentucky Department of
Insurance
Advisory Opinion 99-08
In re: Any Willing Provider
Law
RELEVANT FACTS AND STATUTES:
Recently the Department has seen some issues
regarding the application of the any willing provider law. The
statutes involved are KRS 304.17A-005(17), 304.17A-005(18),
304.17A-005(22), 304.17A-270, and 304.17A-525.
DEPARTMENT’S POSITION:
KRS 304.17A-270 contains the any willing
provider law. The statute says:
A health insurer shall not
discriminate against any provider who is located within the
geographic coverage area of the health plan and is willing to meet
the terms and conditions for participation established by the health
insurer, including the Kentucky State Medicaid program and Medicaid
partnerships.
The first step is to determine if the
plan with which the provider seeks to contract is a health benefit
plan [defined in KRS 304.17A-005(17)] offered by an insurer [defined
in KRS 304.17A-005(22)]. If step one is satisfied, the second step
is to determine if the provider seeking a contract with the health
benefit plan is included in the definition of provider found in KRS
304.17A-005(18). Finally, if the first two steps are met and the
provider is located in the geographic coverage area of the health
benefit plan, the provider cannot be excluded if he/she is willing
to meet the terms and conditions of contracting with the
insurer.
KRS 304.17A-525 requires insurers to
develop relevant, objective standards for initial consideration of
providers and for providers to continue as a participating provider
in the health benefit plan. It requires the terms and conditions to
be based on relevant, objective standards.
The Department considers standards to
be relevant and objective if the standards are uniformly applied to
all providers within a given provider category (e.g., physicians)
and based upon criteria that are reasonably related to the provider
category for the provision of services. Examples include, but are
not limited to, medical licensure, specialty board certification,
medical malpractice history, valid DEA number, and hospital
privileges.
The Department considers standards to
not be relevant and objective if the standards are based upon
criteria that are not reasonably related to the provision of
services by that provider category. Examples include, but are not
limited to, required membership in a certain professional
organization, professional enhancements, a medical degree from a
certain university, a certain age, race, gender, sexual orientation
and disability. The Department considers limiting the number of
providers in a provider category, based upon the determination that
the insurer's network is adequate to be contrary to the law.
The Department will consider all
circumstances in determining if standards are relevant and
objective. The examples listed above are not an exclusive list. The
Department may determine that a particular term and condition is not
based on relevant and objective criteria, and in violation of the
any willing provider law, based on a reason other than listed in
this Advisory Opinion. This Opinion is intended to serve as a guide
for plans in developing terms and conditions.
During the litigation in
Health Maintenance Organization Association of Kentucky, Inc. et
al. v. George Nichols III, Civil Action No. 97-24 the Department
was precluded from enforcing the statute because the Court issued a
stay on the enforcement of the law. However, the case was decided in
the Department’s favor in August of 1998 and the stay is no longer
in effect. The Department is now enforcing the any willing provider
law.
Any questions concerning this matter
may be directed to Shaun T. Orme, Counsel for the Department at
(502)564-6032.
___________________________________
George Nichols III
Commissioner
____________________________________
Date
|
