Any Willing or Authorized Providers

11/5/2014

Health Insurers and Access to Health Care Providers: Any Willing Providers

“Any Willing Provider” statutes, sometimes referred to as “Any Authorized Provider,” are laws that require health insurance carriers to allow health care providers to become members of the carriers’ networks of providers if certain conditions are met. Such statutes prohibit insurance carriers from limiting membership within their provider networks based upon geography or other characteristics, so long as a provider is willing and able to meet the conditions of network membership set by the carrier.

Laws can be broad in scope, applying to all or most licensed providers in the state. Broad laws typically either spell out a list of providers covered by the provisions (e.g., physicians, pharmacists, chiropractors, speech therapists, podiatrists, optometrists, facilities, etc.) or assert that the provisions apply to all providers licensed in the state without specifically listing any.

Laws can also be limited in scope. Frequently, the limited provisions apply to only pharmacies or pharmacists. In some cases, they apply to a limited number of allied professionals such as chiropractors, optometrists, psychologists and social workers.

The Employee Retirement Income Security Act (ERISA) and Federal Preemption

As with most state regulation of insurance, “Any Willing Provider” laws generally apply to only state regulated policies, especially "fully funded" insurance, and do not apply to "self-funded" insurance plans, such as those offered by the largest employers. ERISA creates rules and standards for employers who choose to offer pensions and health benefits to employees. ERISA prevents states from imposing conditions on such "ERISA-protected" health insurance plans. This is known as federal preemption of state laws.

Examples of Any Willing Provider statutes that have been preempted by ERISA include:

Louisiana: LSA-R.S. 40:2202 and
Texas: V.T.C.A., Insurance Code Art. 21.52B.

See ERISA Appendix for an explanation of the court decisions

State Statutes

Twenty-seven states currently have “Any Willing Provider” statutes, 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 force for decades; however, the most recent enacted law changes were passed in 2013. On Nov. 7, 2014 South Dakota voters approved a broad any willing provider binding ballot question.

The requirements of these laws are summarized in the chart below.

Citation	Application/Summary	Years of Legislative Actions
Alabama
Ala. Code 1975 § 22-6-158	Applies to hospitals, doctors, and any other provider to provide Medicaid services.	2013
Ala. Code 1975 § 27-45-3	Applies to pharmacists and pharmacies.	1988
Arkansas
Ark. Code Ann. §§23-99-201—209	Allows enrollees to select their health care provider. Allows patients to sue insurers or managed-care company for violations. They are "intended to prevent managed care medical benefit plans from excluding medical providers as long as the provider is willing to accept the plan's rates as payment for services."	1995 (law upheld in 2005)
Ark. Code Ann. §§23-99-801—803	Applies to a broad range of providers.	2005, 2009
Connecticut
Conn. Gen. Stat. Ann. §38a-471	Applies to pharmacies.	1958, 1981, 1982
Delaware
18 Del. Code §7303	Applies to pharmacies.	1994, 1995
Georgia
Ga. Code Ann., § 33-20-16	Applies to “Every doctor of medicine, every doctor of dental surgery, every podiatrist, and every health care provider within a class approved by the health care corporation.”	1976
Idaho
Idaho Code Ann. § 41-3927	Applies to all health care providers.	1994, 1997, 1998
Illinois
215 ILCS 5/370h	Applies to non-institutional providers.	1937, 1985, 1998
215 ILCS 134/72	Applies to pharmacies.	2000
Indiana
IC 27-8-11-3	Applies to all providers.	1984, 1994, 1996, 1998, 1999
Kentucky
KRS § 304.17A-270	Applies to all providers within the geographic area covered by the benefit plan.	1998
KRS § 304.17A-171	Applies to chiropractors.	1996
KRS § 304.17C-020	Applies to all providers within the geographic area covered by the limited health benefit plan.	2002
KRS § 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
LSA-R.S. 22:2181	Applies to all providers who wish to contract with the Louisiana State University Health Sciences Center Health Maintenance Organization.	1997, 1999, 2008, 2012
Maine
24-A M.R.S.A. § 4317	Applies to pharmacy providers.	2009, 2011, 2012, 2013
Massachusetts
M.G.L.A. 176D § 3B	Applies to pharmacies	1994
Minnesota
M.S.A. § 62Q.14	Allows patients complete freedom of choice of providers for fertility services, family planning services not including abortion, and testing for STIs and HIV/AIDS	1994
Mississippi
Miss. Code Ann. § 83-9-6	Applies to pharmacists and pharmacies.	1997
Miss. Code Ann. § 83-43-13	Applies to dentists	1962
Miss. Code Ann. § 43-11-41	Allows residents in long term care facilities to choose any pharmacist that meets the standards of the long term care facility.	2007
Missouri
V.A.M.S. 376.325	Applies to physicians.	2013
V.A.M.S. 198.530	Allows residents in long-term care facilities to receive care in their homes.	1999
New Hampshire
N.H. Rev. Stat. §420-B:12	Applies to pharmacies	2008
New Jersey
N.J.S.A. 17:48-6j	Applies to pharmacies	1993, 1999
North Carolina
N.C.G.S.A. § 58-51-37	Applies to pharmacies	1993
North Dakota
NDCC, 26.1-36-12.2	Applies to pharmacies and pharmacists.	1989
South Carolina
Code 1976 § 38-71-147	Applies to pharmacies and pharmacists.	1994, 1997
South Dakota
SDCL § 58-18-37 SD Initiated Measure 17 (2014 ballot initiative, passed, Yes votes: 61.8%)	Applies to pharmacies and pharmacists. Applies to "all health care providers who are willing, qualified and meet the conditions for participation"	1990 2014
Tennessee
T. C. A. § 56-7-2359	Applies to pharmacies and pharmacists.	1998, 2001
Texas
V.T.C.A., Insurance Code § 1579.108	Applies to general hospitals within a limited region.	2007, 2009, 2011
Utah
U.C.A. 1953 § 31A-22-617	Any health care provider licensed to treat any illness or injury within the scope of the health care provider's practice, who is willing and able to meet the terms and conditions established by the insurer for designation as a preferred health care provider, shall be able to apply for and receive the designation as a preferred health care provider	1985, 1993, 1994, 2000, 2001, 2002, 2003, 2005, 2007, 2008, 2009, 2013
Virginia
VA Code Ann. § 38.2-3407	Applies to a broad range of providers	1986, 2008
VA Code Ann. § 38.2-3407.7	Applies to pharmacies	1994, 1995, 2010
VA Code Ann. § 38.2-4209	Applies to a broad range of providers.	1986, 1999
West Virginia
W. Va. Code, § 33-25G-4	Applies to any physician or behavioral health provider.	2012
Wisconsin
W.S.A. 628.36	Applies to health care professionals, services, facilities, and organizations.	1975, 1983, 1985, 1987, 1989, 1991, 1997
Wyoming
W.S.1977 § 26-34-134	Applies to all WY providers.	1995
W.S.1977 § 26-22-503	Applies to all WY providers.	1985, 1990, 1993, 1995

Other Related Statutes

New Mexico
N. M. S. A. 1978, § 59A-32-22	Doctors of traditional Asian medicine are licensed providers and should not be discriminated against relative to other providers regarding reimbursement levels and services provided within their scope of practice. This statute pertains to motor vehicle insurance.	1997
Ohio
R.C. § 5126.046	Allows people with intellectual disabilities to choose any willing provider for residential services.	2001, 2009, 2012
Virginia
VA Code Ann. § 38.2-3407.10	Carriers shall provide a provider application and the relevant terms and conditions to a provider upon request	1996, 1999, 2000, 2001, 2004, 2006

No Longer Operational

Florida: Fla. Stat. §408.706—repealed in 2000
Louisiana: LSA-R.S. 40:2202—preempted under ERISA
Minnesota: M.S.A. § 62Q.14—repealed in 2012
Texas: V.T.C.A., Insurance Code Art. 21.52B—preempted under ERISA

Other Resources on Insurance Reform

Michael Clark and Ginny Wilson, Market Responses to Kentucky’s Health Insurance Reforms, available at http://cber.uky.edu/Downloads/health99.htm .

2013-2014 Filed and Pending Legislation

As of Jan. 31, 2014, bills have been proposed in four states (Massachusetts, Mississippi, New Hampshire and Pennsylvania) between 2013 and 2014 that propose to implement some version of an “any willing provider” statute. Summaries of these bills follow below.

Bill Number	Summary	Date Filed
Massachusetts
MA H 3425	Mental Health or Substance Abuse Provider Services. Relates to extending health insurance coverage for services rendered by certain licensed mental health or substance abuse providers.	04/17/2013; did not pass.
Mississippi
MS H 553	Patient Protection Act. Would create the Mississippi patient protection act of 2014; would provide that a health insurer shall not discriminate against any provider who is located within the geographic coverage area of a health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer; would prohibit a health insurer from imposing a monetary advantage or penalty that would affect a beneficiary's choice.	01/22/2014; did not pass.
MS S 2709	Patient Protection Act of 2014. Would provide that a health insurer shall not discriminate against any provider who is located within the geographic coverage area of a health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer; would prohibit a health insurer from imposing a monetary advantage or penalty that would affect a beneficiary's choice.	01/22/2014; did not pass.
MS S 2836	Mississippi Patient Protection Act. Would create the Mississippi patient protection act of 2014; would provide that a health insurer shall not discriminate against any provider who is located within the geographic coverage area of a health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer.	01/22/2014 did not pass.
New Hampshire
NH H 1294	Health Exchange Participation. Would require "any willing provider" amendment that all providers be allowed to participate in the health exchange.	01/08/2014;
Pennsylvania
PA H 222	Health Care Benefit Discrimination. Would amend Title 40 (Insurance) of the Pennsylvania Consolidated Statutes, providing for nondiscrimination by payers in health care benefit plans.	01/22/2013
PA H 708	Volunteer Ambulance Services. Would amend the act of May 17, 1921 (P.L.682, No.284), known as The Insurance Company Law of 1921; would prohibit discrimination against volunteer ambulance services.	02/14/2013
PA H 1622	Physician Practices in an Integrated Delivery Network. Would require insurance carriers and providers to enter into mutually agreeable contracts. Would require the parties to submit to arbitration in the event a suitable contract cannot be formed.	10/15/2013

2014 Ballot Question

South Dakota
Initiated Measure 17: Require Health Insurers to Include All Willing and Qualified Health Care Providers on their Provider Lists
Summary: The initiated measure establishes who is entitled to be on the insurer's list of providers. The measure requires that all insurers list all health care providers who are willing, qualified and meet the conditions for participation established by the insurer. Required a yes or no vote statewide in November 2014; passed by a 61.8% yes vote. [SD Secretary of State explanation] [SD Sec. of State Pro & Con publication]

APPENDIX: ERISA Court Rulings

Texas: In Texas Pharmacy Ass'n v. Prudential Ins. Co. of America (1997), the court held that V.T.C.A., Insurance Code Art. 21.52B was preempted under ERISA

“because it [was] not limited to entities within the insurance industry. Instead, it also [applied] to health maintenance organizations (HMOs), preferred provider organizations (PPOs), and other organizations that provide health care services. Indeed, since the statute [defined] managed care providers to include HMOs, PPOs or “another organization” that provides health care benefits, it [applied] to ERISA benefit plans themselves.”

Louisiana: The court in Murphy v. Community Health Network of Louisiana, Inc. (1998) followed the decision in Texas Pharmacy Ass’n. stating that,

“because [LSA-R.S. 40:2202] [denied] insurers, employers, and HMOs the right to structure their benefits in a particular manner, the statute… effectively [required] ERISA plans to purchase benefits of a particular structure when they [contracted] with organizations like CIGNA and Connecticut General Life Insurance Company (CGLIC) and, in this case, CHN. Travelers, 514 U.S. at 658, 115 S.Ct. at 1678. Therefore, because the statutes [mandated] a certain structure which affects employee benefit plans, they [were], accordingly, preempted.”

For more information on ERISA, please click on the following links:

The Employee Retirement Income Security Act (ERISA), US Department of Labor
Health Plans and Benefits, US Department of Labor
ERISA, National Academy for Health Policy

Research and Authors: This report is an expansion and update of state actions taken over the past 25 years. It includes research compiled by Richard Cauchi (covering actions and status from 2000-2012). This substantially expanded report, including current-session legislation, was researched in 2014 by Ashley Noble, JD for the NCSL Health Program, Denver.