Alternative mechanisms for carriers entering into contracts with risk bearing entities
Section 1 Authority
This regulation is promulgated under the authority of §§ 10-1-109, 10-16-109 and 10-16-708 C.R.S.
Section 2 Scope and Purpose
Colorado law permits carriers to enter into contracts with risk bearing entities. Section 10-16-705(5)(a), C.R.S. states that in the event of nonpayment by or insolvency of the risk bearing entity the carrier is responsible for the payment of all participating providers that have provided covered health care services to covered persons of the Carrier. In lieu of this automatic requirement to pay, Section 10-16-705(5)(b) provides a Carrier with the option of applying for use of an alternative mechanism to ensure that all participating providers that have provided covered health care services to covered persons of the Carrier pursuant to one or more contracts with such contractors or subcontractors or their intermediaries receive payment due.
The alternative mechanism is approved and operating to exempt the Carrier from the automatic requirement to pay under Section 10-16-705(5)(a) as long as the carrier complies with the provisions of the alternative mechanism for which it is directly responsible and monitors the execution of the provisions of the alternative mechanism for which the Risk Bearing Entity is responsible. If a carrier knew or should have known the Risk Bearing Entity was unable to meet its contractual obligations and did not take reasonable action, then the carrier is deemed not to be in compliance with the alternative mechanism, and therefore is subject to § 10-16-705(5)(a), C.R.S.
The purpose for this regulation is to establish an acceptable alternative mechanism pursuant to § 10-16-705(5)(b), C.R.S. This regulation establishes the terms of an alternative mechanism, which, if complied with, is deemed approved for purposes of § 10-16-705(5)(b), C.R.S. Carriers are not limited to this one alternative mechanism. Other alternative mechanism plans can be submitted for consideration to the commissioner.
Section 3 Applicability
This regulation applies to all carriers requesting approval from the commissioner for the use of an alternative mechanism to ensure that all participating providers receive payment due.
Section 4 Definitions
A. “Risk Bearing Entity” is any entity assuming risk from a licensed Carrier to provide covered benefits and services under a managed care plan, which risk the entity would not otherwise have the ability and legal authority to provide.
B. “Start Up Entity” is any Risk Bearing Entity which has less than 24 months operational experience in the Colorado market; or an entity which has experienced a major change in business, including significant market and product expansions; or an entity which has less than 24 months experience in managing its current scope of services.
C. “Established Entity” is a Risk Bearing Entity which has been operating in the Colorado market under its current operational plan for a minimum of 24 months.
D. “Carrier” as referenced herein, is an entity as defined in § 10-16-102(8), C.R.S. which enters into a risk bearing arrangement with providers of services to members of the Carrier’s managed care plan.
E. “IBNR report” is a report containing sufficient information to assess all of the Risk Bearing Entity’s future liabilities under the contract, including all liabilities incurred and reported but not paid and incurred but not reported.
Section 5 Determining and Monitoring the Financial Viability of the Risk Bearing Entity
A. For a Start Up Entity, a Carrier must receive, review and accept documentation from the Risk Bearing Entity which evidences sufficient ability to accept the risk transfer.
1. Prior to the start of business the Risk Bearing Entity must have a business plan including two years of monthly projections.
2. No less than monthly, the Carrier must review:
a. An operating summary with Carrier-specific information broken down by plan;
b. Year to date financial statements for the Risk Bearing Entity as a whole, including a statement of cash flows;
c. A report of incurred but not reported liabilities (“IBNR report”). The IBNR report must contain sufficient information to assess the Risk Bearing Entity’s future liabilities under the contract;
d. Total number of referrals, number of referrals per 1000 members and the number of referrals out of the Risk Bearing Entity’s network;
e. Number of bed days per 1000 members as defined by the contract between the Risk Bearing Entity and the Carrier;
f. Information concerning any other material liabilities of the Risk Bearing Entity.
3. Within 180 days from the Risk Bearing Entity’s fiscal year end the Carrier shall review audited financial statements for the Risk Bearing Entity.
B. For an Established Entity a Carrier must receive, review and accept documentation evidencing sufficient ability to accept the risk transfer.
1. No less than monthly, the Carrier must review an IBNR report and a year to date statement of cash flows for the Established Entity.
2. No less than quarterly, the Carrier must review:
a. An operating summary with Carrier-specific information broken out by plan;
b. Year to date financial statements for the Risk Bearing Entity as a whole, including a statement of cash flows;
c. Total number of referrals, number of referrals per 1000 members and the number of referrals out of the Risk Bearing Entity’s network;
d. Number of bed days per 1000 members as defined by the contract between the Risk Bearing Entity and the Carrier.
3. Within 180 days from the Risk Bearing Entity’s fiscal year end, the Carrier shall review audited financial statements for the Risk Bearing Entity.
Section 6 Appropriate Management Expertise and Infrastructure
A. A Carrier shall ascertain that a Risk Bearing Entity has the management expertise and infrastructure needed to successfully enter into and perform in accordance with the risk contract.
1. Prior to entering into a contract the Carrier shall review the health care experience of senior management; the composition of the Board and its committees; bylaws; ownership of the Risk Bearing Entity; available financial resources; ownership interests of participating providers; adequacy of transaction systems, utilization management, quality assurance, claims, credentialing, and member services; and copies of provider contracts.
2. Annually, the Carrier shall review changes in senior management; ownership; ownership interests of participating providers; adequacy of transaction systems, utilization management, quality assurance, claims, credentialing and member services.
3. The Carrier shall ascertain that the Risk Bearing Entity has a plan to distribute its annual report to all contracted providers and that the report is archived in a manner to which the parties agree.
B. The Risk Bearing Entity shall notify the Carrier of 1) all material modifications to its plan of operations; 2) changes in ownership structure and 3) material financial or operational concerns regarding the financial viability of the Risk Bearing Entity or of the Carrier’s contract which has been brought to the attention of the Risk Bearing Entity’s board of directors.
Section 7 Reinsurance/Reserves or other Financial Assurance
A. A Risk Bearing Entity must maintain cash and cash equivalents at least equal to 45 days of claims liability and capitation payments if claims are administered by the Carrier and 90 days of claims liability and capitation payments if claims are administered by the Risk Bearing Entity. The Commissioner may establish alternative requirements in cases where the contract contains the following terms: 1) The carrier pays the provider directly; 2) The providers are only at risk to provide services which they have the ability and the legal authority to provide; and 3) Neither the carrier nor the risk bearing entity may withhold or redirect funds from these providers to pay for other services.
B. A Risk Bearing Entity shall have appropriate aggregate and specific reinsurance contracts. At a minimum, aggregate and specific reinsurance in amounts required for Risk Bearing Entities participating in HCFA Medicare + Choice programs is required, even if the Risk Bearing Entity does not participate in a Medicare + Choice program.
C. Once the Start Up Entity and the Carrier have agreed to a contract, a Start Up Entity shall obtain an actuarial opinion from a mutually agreed upon qualified actuarial firm certifying that the financial arrangements, including initial capitation rates, are actuarially sound.
Section 8 Risk Bearing Entity/Provider Communication
A. The contract between a Carrier and a Risk Bearing Entity shall include a provision requiring the Risk Bearing Entity to obtain from each provider a statement of understanding at the time the provider enters into a contract with the Risk Bearing Entity and at least annually thereafter. The statement of understanding shall disclose:
1. The level of risk, for every contract, including information on the maximum and minimum possible reimbursements;
2. Identification of what services are being subcontracted out of the Risk Bearing Entity’s network;
3. The availability to the provider of the following information, upon request, on line, if possible, but in any event within ten (10) business days from receipt of a written request:
a. For a Start Up Entity, its business plan with two years of projections (one time filing requirement only);
b. For a Start Up Entity, a statement indicating that the Risk Bearing Entity has complied with the actuarial opinion requirement in Section 6.C.
c. A report on the status of the Risk Bearing Entity, including the health care experience of senior management; administrative fees in the event that the claims processing function has been delegated; composition of the Board and its committees; copy of bylaws; names of physicians paid by the Risk Bearing Entity for services not related to patient care; ownership of the Risk Bearing Entity; ownership interests of participating providers; adequacy of transaction systems, utilization management, quality assurance, claims, credentialing, and member services; and
d. An annual operating summary; audited financial statements; and Carrier audit results for delegated functions.
B. The contract between a Carrier and a Risk Bearing Entity shall include a provision requiring the Risk Bearing Entity to provide, no less than quarterly, its participating providers with a financial summary including claims performance versus projections for the Risk Bearing Entity as a whole and by Carrier contract; a report of claims paid by the Carrier and by the Risk Bearing Entity; an IBNR report; the amount of actual cash and cash equivalents compared to the minimum amount required to be owned pursuant to Section 6(A) and material changes in major contracts.
C. Excluding privileged, member, client and provider specific proprietary information, all of the reports in their standard format described in this regulation will be made available to any provider contracted with the Risk Bearing Entity, upon request, on line, if possible, but in any event within ten (10) business days from receipt of a written request.
Section 9 Reports from Carrier to Risk Bearing Entity
A. The Carrier shall provide the Risk Bearing Entity reports at least monthly pertaining to the specific contract which includes:
1. Eligibility download;
2. Claims download, including detail of all claims that are the Risk Bearing Entity’s risk;
3. Operating summary detailing allocation of amounts paid to and on behalf of the Risk Bearing Entity including claims paid and IBNR estimates;
4. Catastrophic claims summary;
5. Monthly report of the aggregated amount related to pended claims;
6. Provider appeal logs; and
7. Disposition of member and provider appeals.
B. The Carrier shall notify the Risk Bearing Entity of
1. Changes in reimbursement for providers who are contracted with the Carrier for services that the Risk Bearing Entity has risk and could reasonably be expected to impact the Risk Bearing Entity;
2. Significant changes in the provider network;
3. Material changes in the plan design and covered services; and
4. Changes of 5% or more from the previous quarter in age/sex demographic mix of membership.
5. Material changes in claims payment turnaround time.
Section 10 Corrective Action
A. If at any time the Carrier identifies deficiencies and determines that the deficiencies would result in imminent nonpayment to participating providers or inability to provide services to a substantial number of members, the Carrier may immediately deem itself insecure and take back administration of the contract including paying providers directly. Such action can only be taken upon written confirmation by a mutually agreed upon third party named within three business days of notice from the Carrier to the Risk Bearing Entity of imminent nonpayment to participating providers or inability to provide services to a substantial number of members. If the parties are unable to make a determination on a third party within the allowed 3 days, they may seek selection by the Commissioner.
B. If the Carrier determines that the Risk Bearing Entity is not meeting significant requirements of the contract, the Carrier must notify the Risk Bearing Entity of the deficiency in writing. The Carrier and the Risk Bearing Entity have 30 days to mutually agree upon a reasonable action plan and begin implementation of the action plan.
C. If the deficiencies continue after the completion of the term of the action plan, and the deficiencies would have a material detrimental financial impact, the Carrier shall deem itself insecure and may take back administration of the contract including paying providers directly.
D. If the Risk Bearing Entity determines that the Carrier is not meeting significant requirements of the contract, the Risk Bearing Entity must notify the Carrier in writing of the deficiency. The Carrier and the Risk Bearing Entity have 30 days to mutually agree upon a reasonable action plan and begin implementation of the action plan.
E. If the deficiencies continue after the completion of the term of the action plan, and the deficiencies would have a material detrimental financial impact, the Risk Bearing Entity shall deem itself insecure and must initiate remedies available under the contract.
F. If 20% or more of providers contracted with the Risk Bearing Entity sign a letter addressed to the Carrier and to the Risk Bearing Entity attesting to the fact that the Risk Bearing Entity or Carrier is not providing payment as required by their contracts or state statute, the Carrier, the Risk Bearing Entity and a representative of these providers have 30 days to mutually agree upon a reasonable action plan to address the providers’ issues.
G. If 50% or more of providers contracted with the Risk Bearing Entity sign a letter addressed to the Carrier and to the Risk Bearing Entity indicating that the deficiencies continue after the completion of the term of the action plan, and a third party, mutually agreed upon by the Carrier, the Risk Bearing Entity and the providers, determines that the deficiencies would have a material detrimental financial impact, the Carrier shall deem itself insecure and shall take back administration of, including paying providers directly, or terminate the contract.
H. If 50% or more of providers contracted with the Risk Bearing Entity sign a letter addressed to the Carrier and to the Risk Bearing Entity identifying deficiencies that would result in imminent nonpayment to participating providers or inability to provide services to a substantial number of members, the providers may ask that the Carrier deem itself insecure and take back administration of, including paying providers directly, or terminate the contract.
I. If the above provisions do not result in payment to the providers pursuant to their contracts, the Carrier, the Risk Bearing Entity or a representative of 50% of the providers may seek Alternative Dispute Resolution (ADR).
J. The Carrier shall provide notice of any deficiency identified under this Section 9, alleging a material detrimental financial impact, to the Financial Affairs Section of the Division of Insurance within five business days from the date the Carrier receives notification from or notifies the Risk Bearing Entity.
Section 11 Resolution of Conflicts through Binding Arbitration
A. All contracts between or among a Carrier, a Risk Bearing Entity and one or more providers arising under circumstances covered in Section 9, shall contain a provision that conflicts will be resolved through binding arbitration or through any other form of ADR agreed to by all parties.
B. The purpose of ADR is to provide an allocation of responsibility between providers, Carriers and Risk Bearing Entities with respect to compliance with the alternative mechanism.
C. The arbitration panel shall be established as follows. One person may be selected if the parties can agree. Otherwise, a three person panel will be selected with one member selected by the Carrier, and one member selected by the provider representative and one member by the Risk Bearing Entity. If any of the three parties do not suggest a panel member, the third panelist will be selected by the other two panelists.
Section 12 Applying for the Alternative Mechanism
A. When a Carrier and a Risk Bearing Entity enter into a contract, both parties will certify their intention to comply with the alternative mechanism described in this Regulation. The Carrier will maintain a copy of the contractual language or certification on file.
B. When a Carrier submits its risk based capital report on March 1 of each year, the report will include an attachment to the report identifying each contract for which this alternative mechanism was invoked, the amount of managed care credit taken by contract and the total managed care credit taken for risk based capital purposes.
C. The Carrier will be responsible to provide the Commissioner with information substantiating compliance with the provisions of the alternative mechanism upon request.
Section 13 Severability
If any provision of this regulation or the application of it to any person or circumstance is for any reason held to be invalid, the remainder of this regulation shall not be affected.
Section 14 Enforcement
Noncompliance with this regulation may result in the imposition of any of the sanctions made available in the Colorado statutes pertaining to the business of insurance, or other laws, which include the imposition of civil penalties, issuance of cease and desist orders, and/or suspensions or revocation of license, subject to the requirements of due process.
Section 15 Effective Date
This amended regulation shall become effective on July 1, 2012.
Section 16 History
New regulation effective on May 1, 2001
Amended regulation effective July 1, 2012