Jackie Selby Quoted in "Network Adequacy Cases in Wash., N.H. Put Carriers on Notice About Exchange Designs"

Jackie Selby tells HPW that insurers must be aware of the state laws under which they operate, and be certain of the details of provider contracts. "A lot of these access laws are probably in the state of being updated given the exchanges, and they haven't been updated yet. Some states like New York have had very clear access requirements for a long time. All the insurers know what they are and know how to meet them. In some states, I think the laws haven't been as clear," she says. …

In addition to laws, insurers must abide by existing provider contracts. When an insurer designs a narrow network plan, it first should review so-called "steerage" provisions that could be part of its agreements with hospitals and physicians. "Some of them [provider contracts] have contractual protection on steerage, not steering against them. So you could have a breach of contract claim even without access issues," Selby says, referring to carriers directing or steering customers away from certain facilities. "I would say they have to be careful based on what's in their contracts. And, you know, they negotiate discounts usually in exchange for being in the narrow networks because theoretically it provides more steerage. I would say it is very case by case and market by market."

She says most states base their adequacy laws along similar lines, usually the amount of travel time it takes to get to a facility, along with other considerations such as geography and the volume of available facilities. It varies by state.

"This is all pretty new because of exchanges. There have been no huge additions of new products like this for a long, long time. So I think one tool that insurers are using to keep costs down is to narrow the network and therefore it leads to the potential access problems and potential breach of contract problems for these insurers," Selby says.

An added wrinkle is the states that have "any willing provider" laws, which in general mandate that health insurers admit all providers into their approved network so long as the providers meet certain standards. "You [insurers] have to check for any willing provider laws as well as participation at comparable terms to providers willing to join," she adds.