Any Willing Provider Laws Explained
Any Willing Provider (AWP) laws are state statutes that mandate a health insurer or managed care plan to allow an individual or entity to participate as a network provider under the same terms and conditions that apply to other managers and providers of health care services. AWP laws were passed in various states in the 1990s in response to concerns that health plans were restricting access to care through restrictive provider networks. AWP laws are typically intended to provide patients with improved access to providers , address a perceived lack of provider choice, and promote competition amongst health care providers. Although AWP laws are not applicable to every type of health plan (e.g., self-funded employer-sponsored plans may not be governed by an AWP law), some critics view AWP laws to be redundant of federal and state network adequacy requirements and therefore, they could result in little or no meaningful change in availability and accessibility of provider care.
States that Have Adopted Any Willing Provider Laws
In 2021, states with any willing provider laws include Texas, New Hampshire, Louisiana, Kentucky, Florida, Georgia, Colorado, and North Dakota. With the exception of Louisiana, the AWP laws in these states do not apply to self-funded, ERISA plans. These AWP laws, however, apply to fully-insured plans and insurance. Louisiana’s AWP law applies to all physicians, dentists, and providers. Several other states have limited application of AWP laws to chiropractors, pharmacists, podiatrists, optometrists, psychiatrists, and retail clinics. Some state AWP laws lack enforcement mechanisms.
Any Willing Provider Laws Positives
Any willing provider laws offer significant benefits to a range of stakeholders in the healthcare industry, including patients, providers, and insurance companies. Primarily these laws help to ensure that patients have access to the care they chose from providers of their choosing.
AWP laws allows patients to choose among a broad variety of healthcare professionals, removing the limitations of closed networks. This results in stronger patient-provider relationships because patients receive care from familiar doctors, which in turn improves patient engagement with their healthcare regimen. In particular, WP provisions allow patients to avoid long wait times associated with physician shortage areas like cardiology, endocrinology, and otolaryngology, where shortages are expected to continue well into the next decade. With AWP laws in place, patient no longer have to forgo necessary care for themselves or their loved ones because they can’t afford transportation costs, excessive waiting periods, or both.
Increased access to care also benefits providers and insurers. For providers, it means a more robust patient base, while for insurers, it means more premium dollars in their pocket. A recent article notes that PPACA (Patient Protection and Affordable Care Act) regulations exempt AWP laws from the essential health benefits provisions, so there is no additional cost for insurers. In fact, AWP laws may be financially beneficial to insurers for the reasons stated in the article.
WP provisions also encourage insurance competition in a high-cost market. In the past insurers created narrow networks so that they could lower their risk and offer lower premiums to attract new enrollees. However, with the enactment of PPACA, insurers are now penalized for having too many network contracts that limit patient access to care.
Statistical evidence supports the idea that broader provider networks created by AWP laws do not increase healthcare costs. Instead, studies show that patient outcomes improve and costs decrease when patients are allowed to choose from a larger network of providers. A 2006 RAND Corporation study shows that allowing PPO patients to choose any network provider improved patient outcomes by an estimated 12-24%. A 2014 study showed that, after risk adjustment, there was no increase in costs between HMO members and PPO members.
Pitfalls and Criticisms of Any Willing Provider Laws
The most common basis for criticism of any willing provider laws is that the legislation effectively functions to regulate insurance premiums — a concern shared by many in the insurance industry, who are quick to call any such law "anti-competitive." This viewpoint centers on the notion that such legislation will increase premium costs for insurance companies that are forced to include more providers within the benefits network. Insurance companies have also expressed concern that any willing provider legislation is inherently anti-competitive because it will result in forcing the health insurance company to offer plans that are not attractive from a cost perspective, and thus less marketable in the competitive market. Other concerns expressed by insurers include worries over increases in provider litigation, including allegations of healthcare fraud. For insurers, this is an extension of the anti-competitive argument because, as stated above, the insurance company’s concern is that with more providers in an insurance plan, there will be more claims. With more claims, often times comes an increase in litigation. Insurers argue that any potential rise in healthcare costs will be due in part to litigation arising from an increase in defendants (providers) coupled with a predominately unsuccessful history of plaintiff litigation against ultimate payers (insurers). And, here again , the insurers maintain that any such litigation is unfounded and unnecessary because the insurer would presumably prefer not to be in court at all, let alone over relatively small claims in which the insurer lacks merit. With these concerns in mind, insurers frequently will indicate that the only way that they can keep premiums low is to enforce strict regulations against the healthcare providers. For their part, providers favor strict enforcement by insurers to weed out those colleagues that are cheating, but do not favor burdensome litigation that exposes them to liability — especially where there is no culpability on their part. The practical concern behind exposing providers to litigation with insurers is twofold: first, the likelihood that the provider will actually have to defend itself in court, where the overhead and other costs associated with litigation are entirely unnecessary, given that the insurer has expressed a desire to enforce strict rules against villainous providers that are violating the laws; second, there is concern that when an insurer is forced to bring an otherwise avoidable action against a provider, and to incur the costs of such litigation, the insurer will be either forced to roughly pass on these expenses to its other policy holders via increased premiums, or forced to prefer a generally less scrupulous provider who does not try to enforce his or her rights, and is thus more desirable for the insurer’s bottom line.
Comparison of State AWP Statutes
Since the onset of the Affordable Care Act (ACA), several states have passed their own Any Willing Provider (AWP) laws. These laws vary in terms of scope, with some limited to specific lines of insurance, while others extend across multiple lines of business, such as dental and pharmacy. Their differences also include implementation specifications and requirements, as well as provider appeal procedures and the ability for providers to bring actions against insurance companies. Some states impose stricter state-wide credentialing requirements on health plans, while others limit those requirements to network arrangements. The laws can also vary in terms of permitted remedies for non-compliance—injunctive relief, fines or attorney fees—and the nature of discrimination that can be addressed under these laws. The following is a non-exhaustive list of the specific provisions contained within AWP laws of various states in an effort to highlight where the laws may vary.
Connecticut restricts the AWP law to HMO policies, whereas New Hampshire’s law applies to both insurer and HMO policies. Georgia law allows certain insurers to require that any provider in a hospital or ambulatory surgical center be credentialed by the insurer as a condition of being in-network and restricts the requirement that such a provider maintain on-going claims experience based on general good faith utilization review standards. Kansas law may require that participating providers have contracted exclusively with a single carrier or its affiliates, but is otherwise similar to Kansas AWP law. Kentucky’s AWP law does not include a provision allowing insurers to require that out-of-network providers be credentialed by the insurer. Maryland has an AWP law for individual health policies, but not group health insurance policies. Missouri’s AWP law includes a separate "non-dentist ancillary provider" AWP provision for certain limited services provided by podiatrists, optometrists, and audiologists. Montana’s AWP law includes a broad definition of "writing" and "claim," but otherwise restricts the number of times a provider or facility is required to credential under certain circumstances. Nevada law allows insurers to suspend an in-network provider’s contract for failing to meet certain quality standards.
Rhode Island law avoids the frequently disputed "able" language by stating that no insurer "may exclude, refuse to renew or reduce the claims payment of any provider in a health network because the provider has, may have, or has exercised rights or obligations pursuant to law, regulation, or accreditation standards." Tennessee’s AWP law specifically excludes applying such protections to health plans contracting with networks of dentists or oral and maxillofacial surgeons. Texas law allows insurers to require that providers meet certain standards for inclusion in the health plan’s network. Vermont law extends an AWP claim to provide a method for healthcare providers to appeal adverse decisions made in the credentialing process, in addition to claims for unlawful discrimination and reasonable attorney’s fees against any insurer or provider organization that violates the statute.
Prospects for Future Any Willing Provider Legislation
As the healthcare landscape continues to evolve, so too may any willing provider laws. For instance, with the growth of value-based care over the past few years, one could imagine a situation where a payor deals exclusively with a narrow network of providers, or a handful of them. This result would be a logical progression from the predominance of narrow networks under the managed care model. If this is to happen on a large scale, the question will arise as to whether any willing provider laws that are on the books now can accommodate this changed environment. Codification of our experience in the Kaiser model might be needed to ensure that payors cannot unilaterally control interactions with providers. On the other hand , providers themselves may demand to deal just with cautiously selected primary care doctors if payers are more tolerant of such arrangements. It will remain to be seen whether the legislative bodies will step in to provide for a statutory version of the Kaiser model.
A new direction for any willing provider laws may lie in the concept of the "accountable care organization." While these have historically been limited to Medicare contractors (e.g., the "shared savings program" under 42 U.S.C. § 1395jjj), the developments in fragmented care may mean that accountable care organizations take on a larger stature in the non-Medicare world. We have worked with providers in organizing some of these private sector ACOs and they typically have a narrow scope of available providers (that actually may be akin to a closed panel) but target "medical neighborhoods" with individuals in chronic care situations. In time, there may be an interplay between these private sector ACOs and AWP laws.