Any Willing Provider Laws: Where They Exist and What They Cover

"Any willing provider" is the phrase providers most often hope will solve a closed panel. The idea is simple: if you are licensed, qualified and willing to accept the plan's terms, the plan has to let you in. A few states have written that into law for providers generally. Most have not, and the federal law that sounds similar says the opposite. Knowing exactly which rule applies to which plan keeps a dispute from resting on a law that does not reach it.

Does federal law require plans to accept any willing provider?

No. Section 2706(a) of the Public Health Service Act, added by the Affordable Care Act, says a group health plan or insurer "shall not discriminate with respect to participation under the plan or coverage against any health care provider who is acting within the scope of that provider's license or certification under applicable State law." The next sentence says the section "shall not require that a group health plan or health insurance issuer contract with any health care provider willing to abide by the terms and conditions for participation established by the plan or issuer" (42 U.S.C. 300gg-5(a)).

So the federal rule bars excluding a whole license type, such as refusing all licensed clinical social workers because of their license. It does not require a plan to contract with a particular social worker. Medicare Advantage and Medicaid managed care rules work the same way: no discrimination "solely on the basis of" license, but no duty to contract beyond the number needed (42 CFR 422.205; 438.12).

Where is any willing provider the law for providers generally?

Kentucky

Kentucky's statute is the clearest example we have verified: "A health insurer shall not discriminate against any provider who is located within the geographic coverage area of the health benefit plan and who is willing to meet the terms and conditions for participation established by the health insurer, including the Kentucky state Medicaid program and Medicaid partnerships" (Ky. Rev. Stat. 304.17A-270, effective April 10, 1998). A separate provision requires health benefit plans that include chiropractic benefits to let any licensed chiropractor who agrees to the plan's terms serve as a participating primary chiropractic provider (Ky. Rev. Stat. 304.17A-171(2), as quoted by the Supreme Court).

The U.S. Supreme Court upheld both laws against an ERISA preemption challenge in Kentucky Association of Health Plans v. Miller, 538 U.S. 329 (2003), decided April 2, 2003, in a unanimous opinion by Justice Scalia. The Court held that the laws "regulate insurance" and are saved from preemption. It also noted that the law "reaches only those employee benefit plans 'not exempt from state regulation by ERISA,'" which leaves self-funded employer plans outside it. See Kentucky's any willing provider law and Kentucky.

Virginia, for PPOs

Virginia lets insurers offer preferred provider policies that "limit the numbers and types of providers," but the terms for qualifying as a preferred provider "shall not discriminate unreasonably," and "No hospital, physician or type of provider listed in § 38.2-3408 willing to meet the terms and conditions offered to it or him shall be excluded" (Va. Code 38.2-3407(A) and (B)). Price differences produced by individual negotiation or market conditions are not unreasonable discrimination.

Two limits stand out. The rule is about preferred provider policies; exclusive provider policies are addressed separately in the same section. And the statute says "The Commission shall have no jurisdiction to adjudicate controversies growing out of this subsection," so the State Corporation Commission, which regulates insurers in Virginia, is not the forum for deciding an individual dispute under it. How a provider enforces it is a question for a Virginia healthcare attorney. See Virginia's any willing provider rule for PPOs and Virginia.

Is Texas an any willing provider state?

Not quite. Texas gives PPO applicants a "fair, reasonable, and equivalent opportunity to apply," says an insurer "may not unreasonably withhold" designation, requires written reasons for denial, and requires a review mechanism with an advisory panel (Tex. Ins. Code 1301.051 and 1301.053). But it also lets an insurer reject an application "based on a determination that the preferred provider benefit plan has sufficient qualified providers" (1301.051(d)). That is a fair process rule, not a right to admission. Texas does make designation mandatory for podiatrists and for optometrists and ophthalmologists who join contracted practices (1301.0521 and 1301.0522), and for APRNs and PAs added at a participating physician's request (1301.052). See Texas's fair opportunity law.

What about other states?

Other states have been described as having any willing provider laws, and some of those laws apply only to pharmacies or to a single profession. We publish a state as having a provider-wide law only after reading the statute. Until then, treat secondhand lists with caution: a pharmacy-only law will not help a therapist, and a law that covers one product will not reach another. Each state's page on the network access laws index shows what has been verified and the source.

Which plans do these laws never reach?

• Self-funded employer plans. ERISA's deemer clause keeps state insurance laws from treating these plans as insurers, which is why Kentucky's law reaches only plans "not exempt from state regulation by ERISA." The same carriers often administer self-funded plans using the same networks, so a state law that opens a carrier's insured products may do nothing for its self-funded business. See self-funded employer plans.
• Medicare Advantage. Federal law governs Medicare Advantage networks, and federal rules allow plans to refuse providers beyond the number needed (42 CFR 422.205(b)(1)), except private fee-for-service plans (see private fee-for-service plans).
• Medicaid, unless the state includes it. Kentucky's statute expressly includes the state Medicaid program. Elsewhere, Medicaid plan participation rules come from the state's contracts and federal rules.

How do you use an any willing provider law in a dispute?

1. Confirm the plan is an insured product the state regulates. The member ID card is the fastest check.
2. Confirm the law's scope covers your provider type and the product (all health insurers in Kentucky; preferred provider policies in Virginia).
3. Show you are willing to meet the plan's terms. Ask for the plan's participation terms in writing and say you accept them. "Willing to meet the terms and conditions" is the statutory test in both states.
4. Ask for the plan's reason if it still declines, in writing.
5. Take enforcement questions to a healthcare attorney. Whether to go further than a letter, and where, is a legal decision.

Can we check whether one applies to you?

A Network Rejection Review ($249) identifies each plan's product type and whether any willing provider, fair opportunity or similar state rule applies to it. If one does, a Payer Network Dispute ($799 per payer) prepares the request to participate on the plan's terms and the follow-up letters, for you to sign and send. We are not a law firm and do not give legal advice; a healthcare attorney decides whether and how to enforce a statute.