In a matter of first impression under Georgia law, the Georgia Insurance Commissioner has ruled that Georgia’s “Any Willing Provider” law, codified at O.C.G.A. § 33-20-16,(1) applies to BCBSGA's Preferred Provider Organization (PPO) and Health Maintenance Organization (HMO) networks. The ruling arises from a dispute filed initially in the Superior Court of Clarke County, Georgia court system, and then ultimately with the Georgia Insurance Commissioner in late 2009, by Northeast Georgia Cancer Care (NEGACC), a physician group specializing in the treatment of cancer and blood disorders, against Blue Cross and Blue Shield of Georgia and Blue Cross Blue Shield Healthcare Plan of Georgia (BCBSGA) over BCBSGA’s refusal to allow the physicians to participate in BCBSGA’s PPO and HMO networks. The exclusion from those networks followed a dispute between NEGACC and BCBSGA that had been settled upon confidential terms. Following that settlement, BCBSGA entered into an exclusive contract with a separate group to cover cancer services in the Athens area. The net effect of that exclusion was that any patients covered by the BCBSGA plans in question had to be “out of network” and pay additional amounts to the extent they wanted to continue to seek care from NEGACC physicians.
NEGACC had initially filed its claim in Georgia state court, asking among other things, for a declaratory judgment that the Any Willing Provider Law applied to BCBSGA’ HMO and PPO networks. The trial court dismissed NEGACC’s claims, and NEGACC appealed to the Georgia Court of Appeals. That court affirmed the trial court’s ruling, deciding that NEGACC’s declaratory judgment claim was barred because it had failed to exhaust its administrative remedies. See Northeast Georgia Cancer Care, LLC v. Blue Cross Blue Shield of Georgia, Inc., 297 Ga. App. 28 (2009). Specifically, the court found that the Georgia code and regulations provided a particular process through which NEGACC could raise the issue of the applicability of the Any Willing Provider Law to BCBSGA’s HMO and PPO networks, and that it was, therefore, required to pursue that remedy prior to filing a lawsuit in state court. Id. at 30-31.
Following the Court of Appeals decision, NEGACC filed its claim with the Georgia Insurance Commissioner. After issuing a public notice of hearing and permitting the parties and non-parties to participate in a hearing on the issues in February 2010, the Insurance Commissioner issued his ruling on April 7, 2010 that the Any Willing Provider Law was applicable to the HMO and PPO networks in this particular case.(2)
While the ruling would seem to send a signal to health insurance providers that Georgia’s Any Willing Provider law prohibits them from excluding otherwise qualified and willing providers from their HMO and PPO networks, the Insurance Commissioner has declined to extend the applicability of the ruling quite that far, at least for now. In his press release announcing the decision, the Insurance Commissioner specifically noted that this ruling did not necessarily cover the applicability of the Any Willing Provider law to HMOs generally and that he reserved the right to make that ruling in the future.
The ruling could have economic effects that are difficult to predict. The Any Willing Provider law does not require a health insurer or a provider to agree to any particular contractual terms. However, certain providers with sufficient capacity to serve a large number of patients covered by a particular plan may seek to bargain for “steerage” of patients in exchange for a reduction in rates. In other words, a provider may accept additional discounts from its routine rates in exchange for treating a sufficient volume of patients. This ruling could impact the ability of plans and providers to negotiate for such discounts in exchange for directing patients towards a particular provider because the Any Willing Provider law would require a plan to contract with a willing provider under the terms and conditions offered to other providers.
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(1) Georgia's Any Willing Provider law provides, in pertinent part, as follows:
Every doctor of medicine, every doctor of dental surgery, every podiatrist, and every health care provider within a class approved by the health care corporation who is appropriately licensed to practice and who is reputable and in good standing shall have the right to become a participating physician or approved health care provider for medical or surgical care, or both, as the case may be, under such terms or conditions as are imposed on other participating physicians or approved health care providers within such approved class under similar circumstances in accordance with this chapter.
O.C.G.A. § 33-20-16.
(2) BCBS has 30 days to appeal the ruling to Superior Court of Fulton County.
