Abstract
Managed care arrangements are the dominant form of insurance coverage in the United States today. These arrangements rely on a network of contracted providers to deliver services to their enrollees. After the managed care backlash, governments moved to ensure consumer access by issuing a number of requirements for carriers related to the composition and size of their networks and how this information is shared with consumers. The authors provide a comprehensive review of these state-based efforts to regulate provider network adequacy and provider directory accuracy for commercial insurance markets. In addition to common measures of adequacy, they also include requirements specifically targeted to underserved populations. Their assessment comes on the heels of recent empirical work that has raised significant questions about whether these efforts are effective, particularly considering the limited nature of enforcement. They also provide a brief overview and assessment of recent federal government efforts that replicate these state regulations with a focus on lessons learned from state regulations that may help improve their federal counterparts. Furthermore, they outline a future research agenda focused on a more comprehensive evaluation of efforts to ensure consumer access.
Since 2010, health politics have been dominated by partisan quarreling over the Affordable Care Act (ACA) and its implementation, in which most of the attention has focused on only a small subset of policies generated by the ACA, such as the incomplete expansion of Medicaid eligibility across the country. Yet seemingly technical details in implementation can play an outsized role in how citizens experience policy changes (Pressman and Wildavsky 1973). As a large body of research has shown, how citizens experience policy changes can have important implications that go well beyond access to care (Haeder 2020; Haeder and Moynihan 2023; Jacobs and Mettler 2018; Michener 2018).
In health policy, provider networks are one such issue. Provider networks are the subsets of providers to which plan enrollees have access in managed care arrangements. Today these types of arrangements represent the dominant form of commercial medical insurance coverage in the United States, carried by 99% of workers who receive coverage through their employer (KFF 2022). Specifically, 49% are covered through preferred provider organizations (PPOs), 9% through point of service (POS) plans, 12% through health maintenance organizations (HMOs), and 29% through high-deductible health plans with savings options, which can be PPOs, POS plans or HMOs. While the extent of coverage for out-of-network care varies greatly across these types (from virtually nonexistent for HMOs to more generous for PPOs and POS plans), enrollees generally face substantially larger costs when going out of network.
As a result of the restrictions imposed by managed care arrangements, provider networks serve as a crucial link between insurance coverage and actual care because they help to determine how consumers access medical care. Because consumer choice is restricted, often dramatically so, ensuring that networks are adequate in size (i.e., including a sufficiently large number of appropriate medical providers) and are populated with providers whose characteristics enhance equitable care access (e.g., languages spoken or specializations) and who are geographically adequate (i.e., providers who are sufficiently spread out across the service area) is important.
Adequate networks, however, are not enough. Consumers must also be aware of the composition of these networks. Consumers learn this information through provider directories, the lists of in-network providers provided to consumers by carriers. Provider directories are therefore an essential part of provider networks as experienced by consumers at the time of plan choice and when they choose a provider for their care. Having accurate and current knowledge of providers included (or not) in the network is crucial, because going out of network may entail higher out-of-pocket costs, inappropriate or lower quality of care, or even forgone treatment. However, it is currently unclear how much of the “benefit” of insurance coverage is lost for consumers because of the ubiquity of accuracy issues in provider directories and whether consumers are provided with networks that are truly “adequate” to their needs.
States, the primary regulators of insurance in the United States, first recognized this issue in the wake of the managed care revolution when confronted with consumer unrest over “drive-by deliveries” and other issues (White 1999). Since then, regulations imposed on carriers have increased, particularly after the implementation of the ACA, which renewed the interest of researchers, regulators, and consumers alike in the potentially detrimental effects of inadequate provider networks and inaccurate provider directories (Corlette, Giovannelli, and Lucia 2015; Haeder, Weimer, and Mukamel 2015a, 2015b; Polsky and Weiner 2015). Findings from the analysis of the early stages of ACA implementation indicated a significant degree of variation in network adequacy requirements and in language specifying the inclusion of providers in networks that helps meet enrollees' cultural and linguistic needs (Corlette, Lucia, and Ahn 2014; Corlette et al. 2014; Corlette, Giovannelli, and Lucia 2015; Hall and Ginsburg 2017; Wishner and Marks 2017). While these reports provided important insights, at this point many state regulations may have gone through revisions, particularly as the issue of provider networks appears to have garnered the interest of policy makers recently. Moreover, the analyses were often limited to a number of states or focused on particular components of network regulations. This issue has only grown in importance as the federal government has taken numerous steps to increase its own requirements under the Biden administration. This includes recent rulemaking on standards for issuers in the ACA Marketplaces and plans for the Centers for Medicare and Medicaid Services (CMS) to implement quantitative network time and distance adequacy standards (HHS 2022b). In addition, recent Medicare Advantage rulemaking has strengthened health plan requirements to ensure that they contract with an adequate network before their application to CMS (HHS 2022a).
In light of recent regulatory developments, our study offers a systematic assessment of the current extent and nature of these regulations across all states as well as the dimensions of these regulations, with a particular focus on their implementation. Specifically, we conducted a systematic review of state regulatory requirements as they relate to provider networks, via both statutes and the rulemaking processes, that focused on the interrelated topics of provider network adequacy and provider directory accuracy. We did so with an eye toward providing both researchers and policy makers with a comprehensive assessment of the current landscape of regulatory efforts and potential areas in need of improvement. In this analysis, we specifically focused on requirements designed to ensure access for traditionally underserved populations and the potential enforcement mechanisms specified in statutes or regulations. The conceptual framework for reviewing documents established in this study will be helpful for future empirical research. In addition to presenting the findings from this review, we also provide a brief overview of current federal efforts that mirror state efforts to regulate provider network adequacy and directory accuracy. We conclude by outlining potential pathways for future regulation and areas of research.
Assessing State Efforts to Regulate Provider Networks
To systematically establish the current extent of state statutes and regulations related to provider directories, we searched the Westlaw database for state statutes and regulations that included any of the following terms: “provider networks,” “provider directory,” “provider directories,” “provider network,” or “network provider.” We focused on any requirements related to network adequacy or provider directory accuracy that were either quantitative or qualitative in nature. We also specifically searched for which states outlined any specific enforcement mechanisms for these consumer protections.
Our initial review returned 1,297 regulations and 1,896 statutes. Two coders independently reviewed all files. When there were disagreements, a third and fourth reviewer assessed the documents. Because this article focuses on commercial insurance market regulations, we excluded any regulations or statutes that governed state Medicaid managed care plans, workers' compensation plans, or other public health programs. We also excluded instances that exclusively regulated dental care, optometry, or pharmaceutical providers. The final data set used for analysis included 317 distinct regulations and 309 distinct statutes.
As mentioned above, we first focused on network adequacy. Here we identified and assessed eight dimensions related to efforts seeking to guarantee consumer access to medical care. The first three were of a general nature and included: (1) requiring a certain number of providers of a given specialty relative to the number of enrollees, (2) whether geographic accessibility rules in terms of miles or travel time were specified, and (3) whether states specified maximum waiting times for appointments (e.g., in hours or days). To assess whether states included rules to ensure accessibility to medical providers for disadvantaged populations, we examined whether these accommodations were outlined in state regulations or statutes such as: (4) whether carriers were required to make specific accommodations for lack of English proficiency, (5) whether carriers were required to ensure cultural competence across their network, (6) whether carriers were required to ensure extended operating hours within their networks, (7) whether carriers were specifically tasked to ensure access for underserved populations, and (8) whether carriers were required to ensure that provider locations were accessible by public transit.
For provider directories, we focused on three dimensions of state requirements in both regulations and statutes. First, we examined whether states specified any frequency requirements for insurance carriers to update their provider directories. Next, we identified any specific requirements to inform enrollees should a provider withdraw or be terminated from a network. We also identified whether specific language existed in these documents to require carriers to accommodate underserved populations, such as those with disabilities or those without English proficiency. Lastly, we identified whether states specifically outlined any enforcement mechanisms for all analyses described above.
Provider Network Adequacy Requirements
We found that the most common type of requirement established by states was related to the specification of the number of providers that carriers must include in their networks. Overall, we identified 47 instances of these requirements in 31 states (fig. 1). One state, California, established regulations that required “the equivalent of at least one full-time physician per 1,200 covered persons and at least the equivalent of one full-time primary care physician per 2,000 covered persons.” Other states, like Kentucky, relied on a qualitative standard that required “managed care plan[s] shall arrange for a sufficient number and type of primary care providers and specialists . . . to meet the needs of enrollees.” In addition, 29 states imposed 42 distinct travel time and distance requirements. In some states, like Montana, statutes required that “the health carrier shall establish and maintain adequate provider networks to ensure reasonable proximity of participating providers to the businesses or personal residences of covered persons.” In New Jersey, carriers had greater leeway, as they could rely on the “plan's standard for customary waiting times for appointments for urgent and routine care” as a reference point. At the other end of the spectrum, Arkansas laid out specific targets to be met by requiring “at least one Primary Care Professional within a thirty (30) mile radius between the location of the Primary Care Professional and the residence of the Covered Person.” However, the state provided greater discretion for specialty care, which relies on “a sixty (60) mile radius between the location of the Specialty Care Professional and the residence of the Covered Person.”
With regard to appointment wait times, our analyses found 41 instances of state-imposed requirements across 28 states. These requirements included qualitative instances like a regulation from Maine that stated that “all services to covered persons will be reasonably accessible without unreasonable delay.” Some states were more prescriptive and set hard targets, including California, which required that urgent care appointments be offered within 96 hours of the request for appointment. At the same time, New Jersey required that “routine appointments shall be scheduled within two weeks” and that “routine physical exams shall be scheduled within four months.”
In addition to general concerns about network adequacy, some states have attempted to address the needs of individuals who may face additional challenges accessing the health care system. In this regard, we found 26 instances in 20 states that focused on easing language barriers because of English proficiency by requiring languages spoken by providers to be listed in the directory or requiring plans to maintain provider networks with a variety of languages. In Arkansas, carriers had to ensure a provider's “linguistic capabilities, including languages offered by the provider or skilled medical interpreter at the provider's office and whether provider has completed cultural competency training.” In Texas, carrier networks had to meet “language requirements.”
Moreover, we found 10 instances in seven states focused on the “cultural competence” of network providers. Among these, New Mexico required that carriers must ensure “effective services to people of all cultures, races, ethnic backgrounds, and religions in a manner that respects the worth of the individual and protects the dignity of each individual regardless of the circumstances under which services are sought.” In Texas, “an MCO must ensure that cultural barriers do not deter members' timely access to health care services.” Indeed, Texas went as far as requiring a “written cultural competency plan describing how the MCO will effectively provide health care services . . . to members from varying cultures, races, ethnic backgrounds, and religions.”
Additionally, some states specifically focused on guaranteeing access to care outside of regular business hours. Twenty-one states had 31 distinct regulations or statutes that attended to this issue. For instance, Illinois required “written policies and procedures on how the network plan will provide 24-hour, 7-day per week access to network- affiliated primary care, emergency services, and women's principal health care providers,” and Hawaii specifically outlined that “covered persons shall have access to emergency services twenty-four hours per day, seven days per week.” Other states were less strict. Florida merely required that “the hours of operation and availability of after-hours care must reflect usual practice in the local area.”
Eighteen states specifically outlined protections for underserved populations in 25 instances. In Oregon, this meant that carriers must ensure access “to a broad range of essential community providers for low-income, medically underserved individuals in the plan's service area,” while Washington specified that carriers will be tasked with providing consumers with a “choice of providers and service locations and robust provider participation intended to improve access to underserved populations through the participation of essential community providers, family planning providers and pediatric providers.” Hawaii prescribed that networks must include providers “that serve predominantly low-income, medically underserved individuals.”
A small number of states went even further in outlining expectations for accessibility via public transit. These include California, which required that “facilities . . . are reasonably accessible by public transportation,” and New Jersey, where requirements demanded that “there shall be at least two physicians within 10 miles or 30 minutes average driving time or public transit (if available), whichever is less, of 90 percent of the enrolled population.” Alternatively, New Jersey required that “in any county or approved sub-county service area in which 20 percent of an HMO's projected or actual membership must rely upon public transportation to access health care services . . . the driving times . . . shall be based upon average transit time using public transportation.”
Provider Directory Accuracy Requirements
In our assessment of provider directory accuracy requirements, we found 67 instances of states establishing an updating requirement for carriers across 38 states (fig. 2). Some of the requirements were qualitative in nature and avoided setting hard targets. For example, a statutory requirement in Delaware stated that “health insurers shall be required to maintain accurate and complete provider directories, to update provider directories frequently, to audit the accuracy and completeness of such directories, and make the directories easily accessible to the covered person in a variety of formats.” In contrast, some regulations, like those in Vermont, provided specific time frames: “Provider directories must be updated whenever new information is submitted by providers and at least once every six (6) months.” In Washington state, directories had to “be updated for accuracy at least monthly.” Moreover, Washington also required that a “carrier must update its website and provider directory no later than thirty days after the addition or termination of a facility or provider.”
Moreover, we found 40 cases of notification requirements as a result of provider departures across 25 states. One of the broader requirements can be found in California, where regulation required insurers to “promptly notify those patients seen by a provider within the past year when the provider, for any reason, leaves the insurer's network. This may include, but is not limited to, the provider's decision to retire or stop practicing medicine for other reasons, relocation to an area outside the service area, leaving a group practice that is a participant in the network, or withdrawing from a network for any other reason.” In Kentucky, the statutory requirement was more limited, as it focused only on primary care. Here, requirements stated that the “insurer shall promptly notify each covered person on the termination or withdrawal from the insurer's provider network of the covered person's designated primary care provider.”
Lastly, 14 states established 18 requirements meant to support access to accurate provider directories for underserved populations. These requirements included regulations in Colorado that stated that “a provider directory, whether in electronic or print format, shall accommodate the communication needs of individuals with disabilities, and include a link to or information regarding available assistance for persons with limited English proficiency. A provider directory shall also be available in Spanish.” Similarly, the statutory requirement in Delaware required that insurers “make the directories easily accessible to the covered person in a variety of formats,” whereas Georgia, per statute, required that “provider directories, whether in electronic or print format, shall be accessible to individuals with disabilities and individuals with limited English proficiency.”
Recent Federal Efforts to Address Provider Network Issues
While states have been at the forefront of regulating provider networks, the Biden administration has become more engaged in the regulation of network adequacy, including steps for both the Medicare Advantage program (HHS 2022a) and the ACA Marketplaces (HHS 2022b). Previously, the federal government had only taken limited action on the issue of network adequacy, including establishing some requirements for the ACA Marketplaces, such as the limited qualitative network adequacy requirements imposed under the Obama Administration. Federal action on this issue, similar to the issue of surprise billing, is important to extend protections to more Americans because states have been somewhat hampered in their efforts to regulate managed care networks because of the ERISA exemptions. These exemptions prevent states from regulating insurance products for those covered by self-insured plans where employers assume the financial risks of providing health benefits (Callaghan, Haeder, and Sylvester 2021).
In addition to the network adequacy actions noted above, the federal government has also taken steps to improve provider directory accuracy. CMS recently issued a request for information for a “National Directory of Healthcare Providers and Services,” which is envisioned as a “centralized data hub for healthcare provider, facility, and entity directory information nationwide” (CMS 2022: 61018). Additionally, under the Consolidated Appropriations Act of 2021, Congress established enhanced consumer protections and imposed requirements on commercial carriers. Indeed, under the new requirements, which went into effect on January 1, 2022, insurance carriers must establish a meaningful verification process for their provider directories. They must also verify and update their directories “no less than once every 90 days,” update their directories within two business days of getting notice from a provider, and make directory information easily available on their websites. At the same time, carriers must respond to consumer inquiries about whether a provider is in network within one business day. Importantly, consumers who unknowingly seek services from a provider wrongly listed as in network are only held to their regular in-network cost-sharing requirements, according to the No Surprise Act that went into effect in 2022 (Hoadley and Lucia 2022). However, the details of these provisions are to be established via the rulemaking process. While noncompliant carriers may face fines, questions remain about the willingness of the federal government to strictly enforce any penalties and whether any potential penalties will be large enough to incentivize compliance (Burman and Haeder 2021; Hoadley, O'Brien, and Lucia 2022). Nonetheless, these recent federal changes have extended at least some protections to most insured Americans who obtain insurance coverage via self-insured plans.
Enforcement for Network Regulations: The Achilles Heel?
The findings from the systematic analyses presented above on the incidence of provider network regulations is aligned with previous assessments (Corlette, Lucia, and Ahn 2014; Corlette, Giovannelli, and Lucia 2015; Corlette et al. 2022). While much diversity exists across the states, it is undeniable that many states have sought to address concerns about consumer access in managed care products. Moreover, the federal government, particularly the Biden administration, has also moved in the direction of increasing regulation. The question emerges whether these efforts have been successful in improving access to care for consumers. For now, a number of concerns remain, as research has reported that these efforts may have been limited in their effectiveness (Corlette et al. 2022; Corlette, Lucia, and Ahn 2014; Corlette, Giovannelli, and Lucia 2015; Hall and Ginsburg 2017; Wishner and Marks 2017). Geospatial studies of the ACA Marketplaces have highlighted often vast inadequacies in access (Haeder 2019; Haeder, Weimer, and Mukamel 2019a, 2020). These findings raise questions about whether existing regulations adequately serve the needs of consumers. Similarly, a growing literature has begun to show ongoing, significant inaccuracies in provider directories. Indeed, a recent study of the California managed care market found that more than one third of primary and specialty care listings were inaccurate (Haeder and Burman 2022), with similar results for mammograms (Burman and Haeder 2022b) and mental health care (Haeder, Burman, and Xu 2023). Other studies have identified accuracy issues in primary care (Burman and Haeder 2022a; Haeder, Weimer, and Mukamel 2016; Melnikow et al. 2020; Tipirneni et al. 2016), dermatology (Resneck et al. 2014; Tsang and Resneck 2006), mental health (Cama et al. 2017; Holstein and Paul 2012; Malowney et al. 2015), oncology (Hamlyn et al. 2016), and contraception access (Lim and Krajewski 2020). Overall, these studies have indicated that consumers are encountering considerable barriers in accessing medical care because of the inadequacy of provider networks and inaccurate provider directories, despite the statutory and regulatory requirements already in place.
Some researchers have pointed to a lack of dedicated resources, poorly designed measures, and lack of political interest as the main culprits (Haeder, Weimer, and Mukamel 2019b, 2021). Others have criticized existing approaches to network regulation as unenforceable (Hall and Ginsburg 2017). Our analyses here add another potential contributor to the mix: the lack of statutory or regulatory enforcement mechanisms. Indeed, our analyses of state statutes and regulations only identified 25 instances in which language regarding enforcement of network adequacy was clearly present. Most of these instances (15) were related to the number of providers required in a network. The lack of enforcement was particularly noteworthy for requirements focused on underserved populations. Moreover, when requirements were present, the language was usually vague, lacked meaningful fines, and resulted in limited implications for carriers. For provider directory accuracy, we found 23 specific enforcement mechanisms, including regulations in Montana that stated that “the commissioner may conduct an audit of an insurer's provider network,” or Louisiana, where “if the health insurance issuer receives a report from any person that specifically identifies directory information as inaccurate, the issuer shall investigate the report and correct the information.”
An Outlook on Network Regulation for Scholars and Policy Makers
Our analysis of nationwide provider network regulations shows substantial attempts at regulatory activity on issues such as the regulation of provider directory adequacy in terms of the number of providers, time and travel distances, and appointment wait times. However, we found much less activity on issues focused on improving access to care for underserved populations. Our findings were analogous regarding the regulation of provider directory accuracy. Lastly, we found very few instances of specific efforts to outline the enforcement of any standards.
Our approach to the identification of regulations related to provider networks is not without limitations. First, our analysis of network regulation relies on identifying specific instances as identified by our search terms in either statutes or regulations. Instances outside of our broader search terms will inevitably be excluded from our analyses. Second, while our search approach is appropriate for identifying most occurrences of network regulation, we may have missed certain instances where provisions are broader than the specific regulatory requirement or corresponding enforcement mechanism in question. Moreover, we were unable to identify specific efforts by regulators to monitor compliance and detect possible noncompliance not outlined in statutes or regulations. Third, we were also not able to capture any regulatory efforts undertaken via the guidance process, which tends to be less formal and may be exceedingly hard to detect (Haeder and Yackee 2020; Raso 2010). Finally, the regulation of provider networks is dynamic. Our approach is unavoidably an assessment of regulatory regimes at a specific point in time, in our case 2022.
Given the concerning evidence from the academic literature, the question is whether the efforts of the federal government or those of any state regulator to enhance protections for consumers will meaningfully improve access to care for Americans. Unquestionably, on paper recent federal efforts constitute an important step forward in better protecting consumers. However, there are reasons to be skeptical that the experiences of consumers will meaningfully improve, because existing state efforts still allow for significant inadequacies and inaccuracies. Moreover, the existing enforcement approach is largely passive, relying extensively on consumers to “ring the fire alarm” and alert regulators to potential transgressions, an action that few consumers will pursue (McCubbins and Schwartz 1984). Stronger, more effective enforcement also assumes that regulators will be eager to dedicate their limited budgets to conducting oversight and enforcement actions (Haeder, Weimer, and Mukamel 2019b). Consumers are often helpless because of limitations on legal action under federal insurance regulations and the apparent reluctance of both federal and state courts to intervene in issues related to provider networks (Burman 2021; Burman and Haeder 2021).
Given these limitations, carriers have few incentives to diligently comply with the new requirements outside of general market mechanisms. Indeed, the lack of dedicated regulatory personnel (Haeder, Weimer, and Mukamel 2021) and the lack of active enforcement of existing protections have previously been identified as the Achilles heel of any efforts designed to better protect consumers (Burman and Haeder 2021). Our systematic analysis of state statutes and regulations as they relate to provider directory accuracy and network adequacy adds empirical evidence to this claim. Ultimately, the apparent limitations of existing state regulatory regimes and their new federal cousins may leave consumers largely unprotected until meaningful enforcement mechanisms are established and, critically, are consistently implemented by regulators. Of course, carriers may try their best to comply with existing standards even outside of persistent and effective governmental monitoring if it helps them compete against other carriers or thwart potentially more stringent regulatory efforts. However, achieving meaningful accuracy levels and ensuring timely access to care will likely require a substantial investment of resources and standard setting by a governmental entity.
Several potential solutions have been proposed to better protect consumers. Some researchers have suggested a layered approach that provides meaningful process protection for consumers navigating the health care access process, establishes quantitative capacity measures such as time and distance and wait time standards, and specifies outcome measures (Hall and Ginsburg 2017). Proposals for improvements have also called for regulatory floors in combination with greater transparency (Corlette et al. 2014). There has also been a push toward a more comprehensive repository of provider information (Newell 2017; Wishner and Marks 2017). Greater investment in regulatory capacity and strengthened abilities to actively assess provider networks at both the state and federal levels may be required (Corlette et al. 2014; Haeder, Weimer, and Mukamel 2021). Others have pointed toward the need for increased availability of professional advocates for consumers to help them overcome the current power differential with carriers and regulators (Rodwin 1996). This includes the use of patient navigators (Natale-Pereira et al. 2011) or patient advocates like the California Office of the Patient Advocate (Haeder, Weimer, and Mukamel 2019b). However, even well-meaning efforts may run into the realities of health care access in the United States, with many areas suffering from severe provider shortages. As a result, potentially meaningful standards may essentially be unattainable. In fact, the rules that govern Medicare Advantage plan network adequacy were relaxed under the Trump administration to accommodate the pushback from plans operating in rural areas who had difficulty contracting enough local providers. Moreover, establishing and enforcing standards may generate substantial administrative costs. Overregulating carriers may push them into refocusing their efforts toward products or markets with less stringent requirements.
Ultimately, moving toward a better regulatory regime is complex and will require a deeper understanding of which approaches truly add social value. From a consumer perspective, more research is necessary to establish how consumers are affected by directory inaccuracies and which financial and health burdens these inaccuracies impose on them. We also need to learn more about how consumers use provider directories in their choice of health plans and when they seek medical care. More broadly, more work is necessary to assess the effectiveness of different regulatory approaches in ensuring greater levels of accuracy and adequacy. A particular focus here ought to be on the development of effective regulatory standards and the scope of compliance and enforcement. Lastly, we need a more general discussion about what levels of inaccuracies and inadequacies are acceptable, as perfection will always be out of reach.
