Cover: Progress notes: Managed care reforms of the 2017 General Assembly
Kate Alfano, CMS communications coordinator
In 2015, the Colorado Medical Society and elected leaders from several specialty societies notified health plans and the Division of Insurance (DOI) that if acceptable progress wasn’t forthcoming on mounting problems with narrow networks, CMS would take our case to the Colorado General Assembly. Throughout 2016, CMS urged the Colorado Association of Health Plans to resume discussions on this and other issues after a failed 2015 mediation, and participated in the DOI network adequacy stakeholder process. Going into the 2017 Colorado General Assembly, the CMS Board of Directors recognized that progress had fallen short and they authorized the CMS Council on Legislation (COL) to seek legislation to address the policy gaps.
“We knew there was a clear directive from our members to reduce frustrating encounters with health plans that deteriorate the practice environment and place unnecessary hurdles on patients; the only question was whether the General Assembly would respond,” said Mike Volz, MD, CMS immediate past president.
While health plans are backed by an army of lobbyists and the financial resources to spot-hire additional help on demand, CMS deployed three all-member surveys conducted in 2015 and 2016 and the insights drawn from our opposition to the health plan mega-mergers to illustrate the urgency of action. Health plans had too much power over physicians, and care access and quality were being negatively affected as a result. Physicians were forced to accept take-it-or-leave-it contracts and were increasingly deselected from networks without a clear explanation or appeal rights. Physicians and practice staff faced difficult prior authorization and payment requirements. And a scant regulatory enforcement was biased in favor of the plans.
Now, Volz and other CMS directors have their answer. The 2017 General Assembly responded by passing a package of managed care reforms recommended by a coalition comprising CMS, component and specialty medical societies, and the Colorado Medical Group Management Association (CMGMA). “This was a historic session for the medical society,” said Michael Beasley, a highly regarded legislative advocate and president of 5280 Strategies. “In organizing the various medical professions, their leadership was instrumental in passing legislation that had been talked about for many years, and driving the movement to stand up to the abuses of providers and patients by the insurance companies to achieve these reforms.”
“Just as important,” he said, “it sent a message to the Division of Insurance that consumer problems can be identified through the concerns expressed by physicians, so I think this is just the beginning of many more reforms we’ll see in the next legislative session or two.”
“We are thrilled with the outcomes,” said CMS President Katie Lozano, MD, FACR. “The decision to go to the General Assembly was made two months after I was sworn into office. Naturally I was concerned that our case might not be well received, but it was just the opposite, with bipartisan bill sponsors and overwhelming bipartisan support for all of the reforms. At least in Colorado, the legislative process is working.”
“This was a team effort from start to finish,” said Susan Koontz, JD, CMS senior director of government relations and general counsel. “The medical-CMGMA partnership was incredible throughout the journey. Whether participating in our joint policy development process, interviewing candidates in the 2016 election, or advocating locally or at the state capitol, there was this feeling that we were all together and our cause was just. We all understood from physician listening sessions and the survey data that a lot was at stake.”
“While there is still work to be done, the ship is turning,” said Lee Morgan, MD, COL chair and past CMS president. “It was a banner session advocating for Colorado physicians and patients, achieving reforms that will surely reduce hassles for physicians and increase transparency in the interactions between plans and practices. These victories would not have been possible without the legislative champions who took the time to understand these complex issues and work toward solutions.” A longtime participant with the Colorado Medical Society Political Action Committee (COMPAC), Morgan said, “We’ll need to work hard in the 2018 election cycle to support our champions and make new friends.”
Keep reading for the checklist of achievements in the 2017 Colorado General Assembly.
ACHIEVED: Transparent selection/de-selection standards and appeal right
Effective Jan. 1, 2018
“CMS supports the transparency and clarity of information available to consumers and providers about the selection criteria health plans used to build or tier their networks, and CMS felt that network adequacy regulations issued in 2016 by the DOI did not go far enough to ensure this transparency for consumers or providers,” said John Conklin of Conklin, Cardone and Rutberg, PC.
As a result, the General Assembly responded favorably to recommendations of a CMS-led multispecialty Working Group on Managed Care Reform that addressed the transparency of selection criteria and assured that physicians who were going to be de-selected would have the ability to request a reconsideration before it became effective.
SB17-088 requires health plans to communicate selection and tiering standards to participating providers, and to make a description of its standards available to the public. Additionally, health plans cannot terminate or place a participating provider in a more costly tier without providing written notice 60 days in advance with an explanation in sufficient detail to enable the participating provider to challenge the decision. The bill also allows participating providers to request and receive, on a quarterly basis, a list of all network plans and products the health plan offers showing the physician’s participation status for each one.
“The Colorado Medical Society set a great example of effective advocacy by getting doctors involved and in touch with state legislators in order to pass Senate Bill 17-088,” said Senate Majority Leader Chris Holbert, R-Douglas County, co-prime bill sponsor. “Well done, CMS!”
Sen. Angela Williams, D-Denver, said, “I wanted to join the majority leader as the co-prime sponsor of this bill because I am worried about the impact that narrowing networks will have on my constituents – many of whom have had the same doctor treating their family for generations. Losing your doctor is a serious matter!”
CMS President-elect M. Robert Yakely, MD, in his testimony in favor of the bill, acknowledged the inescapabilty of narrow networks in today’s health insurance market and explained that the bill allows for reforms to “help our members prepare for narrow networks so that they can qualify to be in-network and care for their patients. … Simply stated, our members cannot prepare if they don’t know the rules of the game.”
ACHIEVED: Common-sense clarifications for telehealth
In 2015, CMS, with component and specialty medical societies, supported legislation to ensure parity for payment of health care services whether they were provided in-person or via telehealth. That legislation recognized that the physician is the appropriate person to make the determination of when and how telehealth is used. “What was unanticipated in the 2015 bill, however, was that payers would dictate how the care was delivered by restricting payment to telehealth visits provided only through their contracted third-party telehealth vendor,” said Christina Finlayson, MD, professor of surgery, associate medical director and associate dean of clinical affairs at the University of Colorado School of Medicine.
The impact of this loophole meant that providers were being forced to work with third-party vendors whose technology may not interface with their electronic medical records, leading to incomplete records and discontinuity of care; a patient of a provider not contracted with the vendor could access telehealth but had to use a provider with whom they may not have had an established relationship; and because payers may contract with various third-party vendors, providers would also have to interface with multiple vendors, complicating operations.
The successful passage of HB 17-1094 this year ensures that the determination of when and how to use telehealth falls to the physician rendering the care – not the payer. Health plans are prohibited from requiring physicians to use a specific vendor for telehealth services as a criterion for reimbursement.
“It is time we made available and mesh technology with available health care coverage,” said Sen. Larry Crowder, R-Alamosa, Senate co-prime sponsor. “1094 brings these vital issues together for the benefit of the patient and opens up future technological advances that does everything to benefit both providers and patients, and reduces health care costs.”
“The best way to improve health is to improve access, and this law will increase access to medical professionals,” said Sen. Kerry Donovan, D-Vail, Senate co-prime sponsor. “Particularly in my rural district, it can be difficult to get an appointment or take off time from work to accommodate the travel time. Telehealth is an important tool to address both of these issues, and clarifying that telehealth should be covered by your insurance means more people and more health care professionals can take advantage of the telehealth options. This is good for patients and for professionals.”
“I’m very passionate about this bill that will help covered individuals in rural Colorado from having to travel distances for in-person care with the use of a computer or laptop,” said Rep. Donald Valdez, D- Pueblo, co-prime House sponsor.
“It is always a goal for a legislator to carry a piece of legislation that can benefit everyone in their state,” said Rep. Perry Buck, R-Windsor, co-prime House sponsor. “For the state of Colorado, that bill was telehealth. This bill came from doctors who work tirelessly in the field of medicine to help individuals live a better life. I was honored and proud to carry such a significant piece of legislation.”
“HB17-1094 allows providers to develop the telehealth platform that works best for their practice and their patients and requires payers to acknowledge and compensate for this work,” Finlayson said. “This puts the provision of patient health services back in the hands of the patient’s provider, who will know best how to use this technology as an important tool in improving their health.”
ACHIEVED: Protections for physicians from health plan retaliation
Effective July 1, 2017
During the Department of Justice’s investigation into the now-failed merger of Anthem and Cigna, physicians feared retaliation from the health plans if they testified in any hearing. “Legislators agreed that the fear of having a contract terminated can have a chilling effect on a physician’s desire to participate in public policy discussions with legislators or regulators,” Conklin said. HB17-1173, sponsored by Rep. Chris Hansen and Sen. Tim Neville, requires health plans to include a provision in their contracts with participating providers stating that the plan will not take adverse action against the provider for communication with a public official.
“HB17-1173 was a common-sense step in providing protection from retribution for those in the medical field who care about both patient care and transparency so they can freely voice pertinent concerns,” Neville said.
“When a health care provider disagrees with a carrier’s decision they should be able to do so freely, without fear of punitive action,” Hansen said. “This bill increases protections for doctors and nurses who advocate for improvements in the health care system and I was honored to see it earn broad bipartisan support in both chambers as well as the governor’s signature.”
“Physicians need to speak freely and without fear of retaliation from insurers, in order to have a balanced discussion with policymakers and regulators of insurance,” said Alan Kimura, MD, MPH, an ophthalmologist in Denver. “Physicians cannot fulfill our vital role in the health care ecosystem if we are not free to advocate for patients and our practices – indeed, no improvements are possible if key stakeholders are silenced by the threat of retaliation.”
Kimura continued, “The battle to oppose the further concentration of insurer power was hopefully a watershed, beginning to change the power relationship between the mega-insurers and physicians. Thank you and congratulations to the Colorado Medical Society and its lobbying team for garnering bipartisan support of this important protection.”
ACHIEVED: Transparency and independent investigations in health plan mergers
Previously, mergers involving Colorado non-domestic health plans did not require public disclosure of the competitive market analysis or require the DOI commissioner to seek public input.
CMS supported SB17-198 to require the commissioner to notify the public of a proposed merger involving a Colorado non-domestic health plan and whether there appears to be a violation of the competitive standard. Additionally, the bill requires the commissioner to seek public input on the impact of the merger. The Colorado DOI had approved the Aetna-Humana merger through inaction and without public notice or hearing despite CMS and consumer groups seeking input.
During committee consideration, senators defeated a proposed amendment supported by Anthem that would have weakened the current transparency requirements for Colorado domestic health plans, said Alfred Gilchrist, CMS CEO. “They had put millions of dollars into the merger and it was on life support. The company was not going to allow the effort to go down without a fight.”
At the time the amendment was being run, Anthem was making an effort to persuade a federal appeals court to overturn the trial court decision blocking its merger with Cigna. “The amendment clearly anticipated shielding vital information needed by the public to assess the impact of the merger in Colorado during any DOI investigation,” said David Balto, JD, former policy director of the Federal Trade Commission. Had Anthem prevailed in the appeals court, the DOI would likely have been required to hold hearings, conduct a special investigation, and make a decision on the merger based on Colorado law. Members of the Senate Committee on Business, Labor and Technology, led by Sen. Jack Tate, R-Centennial, however, were not persuaded.
“With this bill, we closed the policy gap that allowed the DOI to silently approve the merger of Aetna and Humana without any notification to CMS or the public in general,” Balto said.
“In the current climate of major health care change and reform, I believe it is important to increase transparency in insurance mergers to ensure that consumers and patients are served first and foremost,” said Sen. Kevin Priola, R-Adams County, Senate sponsor.
“I was proud to sponsor this bill because it created transparency in a marketplace that has a direct impact on patients and consumers,” said Rep. Alec Garnett, D-Denver, House sponsor. “The Colorado Medical Society was key to getting this bill to the governor’s desk.”
ACHIEVED: Study of provider-submitted complaints to DOI
Effective June 20, 2017
Having providers, in addition to patients, be allowed to submit complaints about health plans to the Colorado insurance commissioner was raised in a physician-practice manager listening session hosted by CMS in early 2016. Insurance Commissioner Marguerite Salazar was deeply moved by physician-patient care stories and proactively indicated she would consider the idea of provider complaints. A DOI Physician Advisory Group she subsequently appointed further engaged the DOI on the idea.
As the 2017 session was getting underway, the ambulatory surgical society asked for support of their bill mandating that the DOI accept provider complaints, and the CMS-component-specialty society coalition signed on in support of SB17-133, by Sen. Jack Tate, R-Centennial, and Rep. Dave Young, D-Greeley. Understanding these dynamics, Joe Neguse, a Hickenlooper cabinet member and DORA executive director, stepped in and supported the idea of a provider complaint pilot project. Shortly thereafter, DOI agreed to the parameters of the pilot. Because it closely mirrored his proposal, Sen. Tate postponed SB17-133 indefinitely.
“Medical providers are small businesses and do not need to be subjected to the unfairness of providing unreasonable trade credit to large insurance carriers,” Tate said. “Providers have patients to serve and bills to pay as well. I will be following the pilot project that resulted from my introduced legislation to make sure that the state addresses provider complaints and holds insurance companies accountable for bad commercial behavior.” Tate has indicated he is open to introducing new legislation next session if it is needed.
“Providers, particularly practice owners, have unique insight into managed care and can shed light on patient abuses,” Young said. “Importantly, the hassles physicians experience can be a first indicator of barriers to care and by the DOI hearing these complaints, we can address them early. I look forward to the findings of the pilot.”