The U.S. Supreme Court dealt a blow last month to advocates of "any willing provider" clauses when it refused to hear the appeal of a lower court decision stating that an insurer is under no legal obligation to open its preferred provider organization to all physicians who want to participate, even though they agree to abide by its rules and reimbursement limits.

The justices let stand a ruling from the U.S. Court of Appeals for the Fifth Circuit in New Orleans that overturned a Louisiana law on the books since 1984 that said "no licensed provider who agrees to the terms and conditions of the preferred provider contract shall be denied the right to become a preferred provider."

With changes in the insurance industry steering a steadily increasing number of patients to preferred provider organizations (PPO's) and other organized systems of care, physicians who cannot gain admission to their provider rosters often find themselves struggling to maintain their patient base or to attract new patients.

The State of Louisiana defended its law on the grounds that in this new world of health care delivery, the any willing provider statute is a critical strategy to "keep the system fair for patients and health care providers alike." Also in the law's defense, the state maintained that abolishing it would "seriously impede patient choice and a provider's right to earn a living."

Cigna Lawsuit

One of the nation's major insurers, Cigna Health Plan, and a subsidiary, Connecticut General Life Insurance Company, brought suit, however, because they insisted that Louisiana's law illegally overrode federal preemptions mandated in the ERISA law.

ERISA-the Employee Retirement Income Security Act-gives precedence to federal law over state law when there is a discrepancy concerning the terms of employee benefit programs. The law was enacted to ensure that employers would confront a uniform set of rules and regulations no matter what state they were operating in.

Federal law contains no provision ordering health care provider networks to be open to anyone who elects to join, even if they meet the standards the health care plan sets out for participating physicians and health care professionals. Cigna successfully contended before the appeals court that ERISA did apply in this case, because employee benefit plans in Louisiana are impacted by the structure of the provider networks that employers select for their workers.

A few cases on issues relating to any willing provider statutes have been adjudicated around the country, but courts have not been consistent in their rulings. As a result, both sides in Louisiana v. Cigna had hoped that to clarify the legal arguments surrounding the issue, the Supreme Court would render a decision in this case.

APA Statement

APA has been a strong advocate of "any willing physician" legislation since the concept became critical to the debate over access to care and the future shape of the nation's health care system. To put an official stamp on this position, APA's Board of Trustees in July 1995 approved a policy statement that calls on third party payers, whether public or private, "to contract with any duly licensed physician who is willing to accept the payer's published criteria, terms, and conditions for participation and payment for the medical treatment for which the payer is responsible."

Even if courts eventually uphold the legality of any willing provider laws, APA's statement acknowledges that they still do not eliminate members' concerns about access and the right of patients to select any physician they believe will provide the care they need.

As a result, the Board also put APA on record as favoring "the concept of patient freedom of choice and the concept of an affordable point-of-service option, [which] may be superior to 'any willing physician' in their value to physicians and patients." The APA statement refers to "physician" rather than to the more commonly used term "provider" because, the Board said, "APA believes that treatment by a nonmedical licensed professional cannot substitute for medical treatment by a physician."

(Psychiatric News, December 6, 1996)