Blurred Lines: What Networks and Benefit Plans Are You Really Participating In?

Health plans used to offer only a handful of products each, making it fairly simple for health care providers to determine the networks and benefit plans in which they participated. But the number of products has only proliferated in recent years. At the same time, health plans have placed a premium on flexibility with respect to the networks of providers they offer to customers. As a result, more and more of them have sought to include contract language which permits them to unilaterally place providers in new products, without need of an amendment, on terms that are advantageous to the health plan, and to permit them to exclude particular providers from individual networks at the discretion of the health plan. No wonder, then, that many providers are not quite sure just what plans they participate with.

This issue is again being illustrated in the roll-out of the new Basic Health Program products being offered by many health plans in New York for January 1, 2016. Authorized by the Affordable Care Act, New York State has established standard product designs labeled Essential Plans 1, 2, 3 and 4, that health plans may offer. Plans 3 and 4 cover a Medicaid population, while Plans 1 and 2 cover a population that is not eligible for Medicaid but previously received the highest level of subsidies under the health insurance exchange. In other words, Plans 3 and 4 cover a commercial population. It appears that a number of health plans are not just deeming providers to be participating in such networks, but asserting that they should be accepting their Medicaid rates for persons enrolled in all four Essential Plans, including the commercial members in Essential Plans 1 and 2.

What if you do not want to participate in the Essential Plans, or you object to being paid Medicaid rates for commercial business? Your recourse depends upon the terms of your participation agreement. Does it require your consent to participate in new products? Is an amendment required? Does it permit the health plan to dictate the terms of reimbursement unilaterally? Can you object, and if so how soon must you do so, and in what format? These are things all providers need to know these days, both in the context of this latest issue, but also as a general matter, as this issue is arising with greater frequency.

Depending on your circumstances, and the health plan you are negotiating with, it may be possible to negotiate some protections into your participation agreement at the time you sign it. In other cases, that may be impossible to achieve. So you may not be able to avoid the issue entirely. However, you should be vigilant about changes the health plans make in their networks and product designs, some of which may appear to be subtle, but in the end have surprisingly significant impacts. Again, make sure you know what your recourse is, and take action in a timely manner.

If you have questions or concerns about health plan actions in this regard, or would like to discuss how to protect yourself against these tactics, please contact the GW attorney with whom you normally work, or one of our experienced managed care attorneys, Fred Miller, Debra Silverman or Robert Schiller.

Categories: Managed Care