Essential Community Providers and Marketplace Plans

Plans sold on the Affordable Care Act marketplaces have a network rule that most commercial plans do not: they must include essential community providers, the safety-net organizations that serve low-income and medically underserved patients. For an eligible organization that has been told a marketplace network is closed, the rule is one of the few federal requirements that points a plan toward a specific kind of provider. For an individual clinician in private practice, it usually does not apply.

Who counts as an essential community provider?

The definition in 45 CFR 156.235(c) is "a provider that serves predominantly low-income, medically underserved individuals." It includes health care providers defined in section 340B(a)(4) of the Public Health Service Act, providers described in section 1927(c)(1)(D)(i)(IV) of the Social Security Act, certain state-owned, governmental or not-for-profit family planning sites, and Indian health care providers, unless a provider has lost that status by violating federal law.

For the federally facilitated exchange, the rule groups ECPs into eight categories: "Federally Qualified Health Centers, Ryan White Program Providers, Family Planning Providers, Indian Health Care Providers, Inpatient Hospitals, Mental Health Facilities, Substance Use Disorder Treatment Centers, and Other ECP Providers." The Other category "includes the following types of providers: Rural Health Clinics, Black Lung Clinics, Hemophilia Treatment Centers, Sexually Transmitted Disease Clinics, Tuberculosis Clinics, and Rural Emergency Hospitals" (156.235(a)(2)(ii)(B)).

These are organizations. A therapist or physician employed by an FQHC or a community mental health facility benefits through the employer's contract, not in their own name.

What must a marketplace plan do?

The general standard in 156.235(a)(1) applies to every qualified health plan issuer that uses a network: the network must include "a sufficient number and geographic distribution of essential community providers (ECPs), where available, to ensure reasonable and timely access to a broad range of such providers for low-income individuals or individuals residing in Health Professional Shortage Areas," in line with the exchange's network adequacy standards.

For a plan seeking certification on the federally facilitated exchange, 156.235(a)(2) adds specific tests. The network must include at least a minimum percentage, set by HHS, of available ECPs in the service area, both across all categories and within certain categories. And the issuer must offer contracts to:

• "All available Indian health care providers in the service area"; and
• "At least one ECP in each of the eight (8) ECP categories in each county in the service area," where an ECP in that category is available and provides services the plan type covers.

Two counting rules matter. Several providers at one location count as a single ECP. And in tiered networks, an ECP counts only if contracted in the tier with the lowest cost sharing, so in a typical two-tier PPO, "only preferred providers will be counted towards ECP standards" (156.235(a)(2)(i)).

Does a plan have to report contract offers?

Yes, on the federally facilitated exchange. The QHP application must include "the status of contract offers to qualified ECPs available in the network plan's service area," at least for every ECP the issuer included or offered a contract to (156.235(a)(3)). An ECP that asked for a contract and never got an offer is a fact the plan has to account for somewhere.

What can a plan still refuse?

The rule is not a guarantee of a contract at any price. "Nothing in paragraph (a) of this section may be construed to require a QHP issuer to contract with an ECP if such provider refuses to accept the same rates and contract provisions included in contracts accepted by similarly situated providers" (156.235(d)). Plans that deliver most professional services through employed physicians or a single contracted medical group may use an alternate standard instead (156.235(a)(5) and (b)).

There is one payment protection for FQHCs: if an FQHC furnishes a covered item or service to a QHP enrollee, the issuer must pay at least what the center would have received under section 1902(bb) of the Social Security Act, unless the parties agree on another rate that is at least the issuer's generally applicable rate (156.235(e)).

How does this fit with general network adequacy?

Separately, under 45 CFR 156.230(a)(1), a QHP network must include ECPs and be "sufficient in number and types of providers, including providers that specialize in mental health and substance use disorder services, to ensure that all services will be accessible without unreasonable delay." On the federally facilitated exchange, in states without a CMS-recognized review program, plans must meet federal time and distance standards from plan year 2023 and appointment wait time standards from plan year 2025 (156.230(a)(2)). QHP issuers must also mark which providers are not accepting new patients in their directories (156.230(b)(1)).

How can an eligible organization use the ECP rule?

1. Confirm your organization meets the definition and which of the eight categories it falls in.
2. Check whether the plan is sold on the federally facilitated exchange or a state-based exchange, since the specific tests in 156.235(a)(2) are written for the federal exchange.
3. Request a contract in writing, state your willingness to accept the rates and terms offered to similarly situated providers, and keep the response.
4. Document what the plan's network shows in your county for your category.

The letters go out under your organization's signature. Legal questions about the rule's reach, or a dispute over contract terms, belong with a healthcare attorney.

Where we fit

We research, prepare and organize; we do not represent providers. A Network Rejection Review ($249, credited toward a dispute) checks whether the ECP rule applies to your organization and the plan. A Payer Network Dispute ($799 per payer) prepares the contract request and supporting evidence for you to sign and send, and we follow up on the plan's answers. If the plan offers a contract, the win fee is a flat $1,500. For other levers by plan type, see the closed panels hub and why payers reject providers.