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Show Any Willing Provider: An Unacceptable Risk for a Marginal Gain Samuel Sutton tain proportion of employees; provide for accountability of the plan's "fiduciaries" (or financial stewards); allow participants to sue over alleged abuses or lack of benefits; and provide for their plans to pay out a certain level of benefits if they go under. When ERISA was passed, Congress stipulated that "ERISA would pre-empt all state laws insofar as they may now or hereafter relate to any employee benefit plan except that those state laws which regulate insurance, banking or securities are saved from pre-emption" (Blumenreich, 2003, p. 260). In other words, the federal concept of pre-emption (that federal laws override any state laws that may create a conflict) applies to laws that regulate employee benefit plans - but it does not apply if they regulate insurance. This definition of pre-emption by ERISA was used during the 1990s to overturn some AWP laws (such as in Louisiana, Texas, and Arkansas, when these courts decided that the laws regulated benefit plans, not insurance providers), but uphold others (such as in Virginia, Kentucky and Massachusetts, when these courts decided that the laws regulated insurance providers, not employee benefit plans) (Butler, 2003, p.2). The Kentucky AWP case - Kentucky Association of Health Plans v. Miller. In 1994, the Kentucky Legislature passed the Kentucky Healthcare Reform Act, which contained its own version of Any Willing Provider. The Kentucky law is one of the broadest AWP statutes to date, as it required MCOs to accept into their panel any provider willing to meet the terms of the contract. Only a few exceptions were made, and the law applied to virtually all classes of healthcare providers and treatments. The statute has become arguably the most studied and cited law of its kind to date, partially due to its lengthy and eventually triumphant legal battle and the importance of the precedent that it subsequently established. The challenge to AWP contained in Miller arose out of a perceived conflict with ERISA that was similar to previous cases. The association of HMOs that challenged the Kentucky AWP legislation alleged that the law applied to employee benefit plans, thus making it inapplicable in the face of ERISA. The State of Kentucky countered that the law regulated insurance, thus placing it under the pre-emption clause of ERISA and granting it exemption from the federal mandate. The case went all the way to the Supreme Court, where the decisions of lower courts were upheld, as the justices unanimously agreed with the State of Kentucky. It was decided that Kentucky's AWP law regulated insurance, not employee benefits, and thus was exempt from the federal preemption of ERISA. While the court acknowledged that the law might affect healthcare providers - and thus those who provide employee benefits - it decided that the law "regulated insurance by imposing conditions on the right to engage in the business of insurance. A statute that imposed conditions on the right to be an insurer regulated the 'business of insur-ance'" (Blumenreich, 2003, p. 261). As a result of this 2003 decision, Kentucky's AWP law was upheld and one of the major legal obstacles utilized by AWP opponents was effec' tively nullified by the Supreme Court. Indeed, in the aftermath of the court's decision, the injunction against Arkansas AWP law was lifted (Albert, 2004, p.l), and action on other states' laws is sure to follow. Common Arguments For and Against AWP Proponents of AWP legislation argue that the increased com' petition it will bring to the market will help drive down the cost of healthcare. They point out that by allowing the doc' tors on a specific network access to those patients only, MCOs are stifling competition (as doctors that are under specific contracts with an MCO are often not allowed to see patients from outside the network). AWP proponents also present the issue as a patient-choice matter, arguing that letting an MCO's administrative panel dictate which doctors can be seen and which treatments will be approved, compromises market competition, and is thus bad for consumers. Proponents argue that denying patients the choice to see whomever they want for medical treatment is not putting their interests first, which should be a priority for the health' care industry. This reasoning also extends to situations where patients are forced to change doctors, such as when their employer switches health plans or their physician is suddenly no longer a member of their MCO's panel. Not only is an established personal and professional relationship eroded, but the consequences previously discussed may be incurred. The previously discussed transportation problems faced by rural patients can also make for a strong case against closed panels-Finally, proponents of AWP often cite instances of certain treatments being denied to patients by their MCO's adminis' tration, even if they - and sometimes even their doctor - pre' fer it to other alternatives. On the other hand, opponents of AWP legislation argue that this system undermines the cost-saving mechanisms employed by MCOs. If MCOs are required to accept all eli' gible doctors into their network, they may not be able to guar' antee a sufficient number of patients to their panel, thus undermining their volume discount advantage. Another allc gation is that AWP laws will undermine the ability of MCOs to manage the care their patients receive, potentially leading to unnecessary or redundant procedures. Opponents also argue that AWP may actually reduce healthy competition in the market, as providers currently must work to keep their costs low enough to participate, thrive, and profit within selective and competitive networks. Since there are often many providers trying to qualify to serve on an MCOs panel the MCO gets to choose those that offer the highest quality services for the lowest price. Passing an AWP law would undermine this competition, they argue, allowing providers 78 |