Network adequacy directories getting worse even as CMS cracks down; Secret Shoppers needed?

About a week and a half ago I received the following email (posted w/permission w/identity removed):

Hello Mr Gaba. Last year I had a BCBS insurance through marketplace and this year I switched to a Physicians Health Plan offering, also through the marketplace. I thought I had done due diligence. I was interested in switching to the University of Michigan system. As I shopped for plans the PHP website listed literally hundreds of potential pcp's near me in Ann Arbor. But as I began to try and sign up with a new doctor and called the number listed for each doc (usually the same U-M switchboard number) I found that none of the docs listed were, in fact, accepting new patients.

At the moment I cannot find a new pcp through my new health insurance. Is this legal? Have I any recourse? Where can I find info on what to do? They suggest that I try to get my former doctor to fill out a prior approval or out of network form...Hoping you can direct me to somewhere; thank you for any direction you can offer me.

This is a perfect example of what seems to be a growing problem nationally. As my colleague Louise Norris notes, federal health insurer network adequacy rules state that the carrier is required to note whether the providers listed in their network are accepting new patients or not:

(1) A QHP issuer must make its provider directory for a QHP available to the Exchange for publication online in accordance with guidance from HHS and to potential enrollees in hard copy upon request. In the provider directory, a QHP issuer must identify providers that are not accepting new patients.

Is Physicians Health Plan violating the law here? Perhaps, although as another colleague noted, it's also possible that PHP thinks their PCPs are accepting new patients but those at the front desk are being instructed to tell new patients otherwise.

As it happens, CMS started beefing up insurer provider network rules pretty heavily, at least on paper, starting this year, and are (again, on paper) doubling down on it starting in 2024 as well, as I wrote about last month:

For 2023, the final NBPP started requiring that CMS review healthcare provider network adequacy reviews in federal ACA exchange states based on time and distance standards; for example, at least one primary care physician has to be within a 10 minute drive and 5 miles of any enrollee in large metropolitan counties; starting in 2024, routine primary care appointments have to be available within 15 business days of being requested, and so forth.

For 2024, this proposed NBPP appears to be expanding the types of plans which are subject to these network adequacy rules to also include stand-alone dental plans and small group plans (SHOP) sold on the ACA exchange.

...and, in fact, some carriers have been fined for violations of network adequacy rules (via Amy Lotven of Inside Health Policy):

IL Exchange Plan Fined Over Parity Violations

Illinois insurance regulators last week slapped a half-a-million-dollar penalty on Quartz Benefits, an exchange insurer, for violating federal and state mental health parity laws. The move came just months after the Illinois Department of Insurance fined Celtic Insurance Company $1.25 million for running afoul of the Mental Health Parity and Addiction Equity Act and a state law that requires plans to maintain an adequate provider network.

Quartz was fined on Jan. 11 and Celtic on Oct. 18. Both violations were revealed during the state insurance department’s comprehensive market conduct examinations of the companies.

...unfortunately, that doesn't help victims such as the person who emailed me in the short term, and it's a big problem nationally:

Not sure what happened in 2023 but the network issues are out of control. We desperately need oversight and enforcement of network adequacy rules @CMSGov @HealthCareGov @SabrinaCorlette

— Jenny Chumbley Hogue (@kgmom219) January 19, 2023

Hey @HHSGov, your standards for @HealthCareGov network adequacy were supposed to get better, not worse in 2023....

— Sabrina Corlette (@SabrinaCorlette) January 19, 2023

The problem was recently discussed in this story by Nona Tepper of Modern Healthcare (paywalled):

Provider directories are a mess. CMS' plan to fix them has few fans

...and in fact, just this morning it was the topic of a Health Affairs podcast with Leslie Erdelack & Jessica Bylander:

Leslie Erdelack: If you have health insurance, maybe this has happened to you or someone in your family, you move or switch to another insurer and you want to find a doctor or a mental health practitioner in your health plan’s network.

You might decide to shop around and consult your plans directory, expecting that information to be accurate so that you can make an informed decision about the health care options available to you, only to find out that the phone number for the practice is wrong or the provider moved and isn't accepting new patients. Or maybe you find out that the provider isn't even in your network.

Jessica Bylander: Yeah, you know, I have encountered this. Mostly, I've had situations where a provider listed in the directory, they actually maybe went out of business, or where, they're listed, but aren't actually accepting new patients. So health insurers are required to make these lists available to their members, but it doesn't do much good if it isn't up to date. Not only does it affect your ability to get care in a timely manner, but inaccurate provider directories also raise questions about whether the network is adequate as a whole.

Jessica Bylander: Are there really enough in-network providers and various specialties available to enrollees? Not to mention if you unknowingly go outside your network based on these erroneous listings in the directory, you might receive a higher and unexpected surprise bill from an out-of-network provider. There are now more protections in place against that through the No Surprises Act, by the way, which also created some new requirements for insurers to keep their provider directories up to date.

So, what's the solution here? A combination of verification + enforcement actions. There's over 200,000 primary care physicians in the United States, and nearly 1.1 million active physicians total. It's supposed to be up to the insurance carriers to confirm that their provider networks are up to date & accurate, but if they do a sloppy job of that, the federal and/or state governments are supposed to step in. I have no idea how many man-hours are required to act as "secret shoppers" here. Maybe they're already doing that, although my guess is this is only done after CMS or state insurance regulators receive a certain number of complaints about a particular carrier first.

At the same time, there's also long been a shortage of physicians in the U.S.:

Data published in 2020 by the Association of American Medical Colleges estimates that the U.S. could see a shortage of 54,100 to 139,000 physicians by 2033. That shortfall is expected to span both primary- and specialty-care fields.

Even if every insurance carrier was diligent about ensuring their directories are 100% up to date & accurate (which they absolutely should be), that won't cause more doctors to sprout from the ground, so that's another headache. Short of that, widening their networks means negotiating with more healthcare providers, which in turn presumably means agreeing to higher reimbursement rates, which of course impacts the carriers overhead and, ultimately, premium rates.

The other part of the solution is enforcement. Again, I don't know how many carriers are being fined for violating network adequacy rules or how much they're being fined (I assume most of the fines don't make headlines unless they're significant), but whatever it is today it sounds like CMS & state insurance departments need to step it up.

What about the providers themselves? What are the consequences for them if they provide false information to the carrier or the enrollee? I assume there's some sort of penalty in their contracts with the carriers (up to & including being kicked out of the network), but are there any penalties carried out by the state or federal government as well? Even then, if they get kicked out of the carrier network mid-year, that may be the right thing to do, but it also puts all of their existing patients who they are treating in a real bind.

In short, it's one thing to issue strict rules on paper. It's something else entirely to enforce those rules.

As for the person who contacted me about their inability to find a supposedly in-network primary care provider via Physicians Health Plan in the Ann Arbor, Michigan area willing to take them on as a new patient, I'll post an update if/when they're able to make progress with their situation.