By Erin Gibson Allen, Esq.
The Quality Health Care Accountability and Protection Act took effect January 1 of this year and is intended to address concerns about care provided to patients when managed care plans are involved. There are several credentialing issues raised by this new law which warrant the on-going attention of providers. Providers should know when the law applies, what credentialing restrictions are placed on managed care organizations, what rights the providers are afforded and what are the limitations of those rights.
The Narrow Applicability of the Law
Before providers can be confident that the law applies to a particular credentialing situation, the first step is to determine if a managed care plan, as defined by the law, is involved.
The law states that it covers “managed care plans,” which is narrowly defined within the statute to be “[a] health care plan that: uses a gatekeeper to manage the utilization of health care services; integrates the financing and delivery of health care services to enrollees by arrangements with health care providers selected to participate on the basis of specific standards; and provides financial incentives for enrollees to use the participating health care providers in accordance with the procedures established by the plan….” Under the plain meaning of this definition, plans which do not utilize gatekeepers, as many popular plans do not, are not by definition managed care plans covered by this new law. In commenting to the Allegheny County Bar Association, Health Law Section, Sen. Timothy Murphy, one of the sponsoring senators of this legislation, recognized the limiting nature of this definition.
Less restricting under the law is the definition of “health care provider,” which includes providers other than physicians. The term includes a person who is licensed, certified or otherwise regulated to provide health care services under Pennsylvania laws. Providers include, for example, physicians, podiatrists, optometrists, psychologists, physical therapists, certified nurse practitioners, registered nurses, nurse midwives, physician’s assistants, chiropractors, dentists, pharmacists or individuals accredited or certified to provide behavioral health services.
Department of Health Oversight in Credentialing
Managed care plans are required to adopt and maintain credentialing standards for providers as set forth in the law. Plans are required to establish a credentialing process to enroll qualified health care providers and create an adequate provider network. The process must be approved by the Department of Health and is to include written criteria and procedures for initial enrollment, renewal, restrictions and termination of credentials for health care providers.
The Department of Health is also required to establish credentialing standards for managed care plans. The Department is granted the discretion to adopt nationally recognized accrediting standards to establish the credentialing standards for managed care plans. The Department is scheduled to issue regulations in early 1999, which will clarify its responsibilities under the law. Providers wanting to better monitor managed care plan’s credentialing activities are well advised to be aware of and understand these regulations when they are issued.
Managed care plans will be required to submit a report to the Department of Health regarding its credentialing process at least every two years or as otherwise may be required by the Department of Health. The exact details of these reports are not yet determined.
Disclosure of “Relevant” Credentialing Criteria
Managed care plans will be required to disclose to each enrollee upon written request a description of the credentialing process for health care providers. Plans are also required to disclose “relevant” credentialing criteria and procedures to health care providers that apply to participate or that are participating in the plan’s provider network. What constitutes “relevant” credentialing criteria and procedures is not clear and, while this could be further clarified by regulation, this will likely become an area for contention between providers and plans.
Furthermore, if a managed care plan denies enrollment or renewal of credentials to a health care provider, the managed care plan is required to provide the health care provider with written notice of the decision. The notice is required to include a clear rationale for the decision. The law does not provide for any additional protections (e.g., the legal right to challenge or request a “better” explanation). Providers and plans may be at odds as to what constitutes a “clear rationale” for the denial.
Protection from Termination
In deciding whether to exclude or terminate a health care provider from participation in the plan, the plan cannot make such decisions based on the following three reasons:
(1) Providers cannot be excluded or terminated by reason of the following three activities:
• Advocating for care. A provider cannot be terminated for advocating for medically necessary and appropriate health care consistent with the degree of learning and skill ordinarily possessed by a reputable health care provider practicing according to the applicable legal standard of care.
• Filing a grievance. A provider cannot be terminated for filing a grievance as prescribed under the new law.
• Protesting a decision. A provider cannot be terminated for protesting a decision, policy or practice that he or she, consistent with the degree of learning and skill ordinarily possessed by a reputable health care provider practicing according to the applicable legal standard of care, reasonably believes interferes with his or her ability to provide medically necessary and appropriate health care.
(2) Health care providers cannot be excluded or terminated for having a practice that includes a substantial number of patients with expensive medical conditions.
(3) A health care provider cannot be excluded or terminated from participation in a plan for objecting to the provision of or refusing to provide a health care service on moral or religious grounds.
Incorporation of the Peer Review Protection Act
A short but potentially loaded provision of the law provides that “any individual providing information during the credentialing process of a managed care plan shall have the protections set forth in the…Peer Review Protection Act.” The scope of this provision will no doubt be the subject of future debate.
The initial excitement over the incorporation of the Peer Review Protection Act, however, may be lessened by a closer examination of the wording of the new law. The Act itself provides essentially three levels of protection: to the individual providing information to an entity engaged in peer review, to individuals who are members or employees of review organizations, and protection from disclosure of the review organization’s records. The plain meaning of the provision provides that “any individual providing information” will have protection under the Peer Review Protection Act, which incorporates the first protection of the Peer Review Protection Act, and not the second or third.
Therefore, individuals providing information to a managed care organization during a credentialing process receive some immunization from liability if they act in good faith compliance with the Peer Review Protection Act. The plain meaning of the act does not appear to provide members or employees of committees performing the credentialing process with the same protection, nor are the review organization’s records necessarily confidential.
The Quality Health Care Accountability and Protection Act is a solid step forward in establishing a standard process for the credentialing of providers in managed care plans. Providers may, however, be disappointed when several plans with which they participate are not covered by the new law, when plans fail to disclose what providers feel is sufficient information on the credentialing criteria used by the plan, and when the provider receives a vague written notification of the rationale for his or her denial of enrollment or renewal of credentials in a plan. Ideally, some of this vagueness will be resolved, both through regulation and mutual cooperation of managed care plans and providers.
Erin Gibson Allen, Esq., is with the Houston Harbaugh law firm in Pittsburgh.