CAA #6: Continuity of Care Requirements in the Consolidated Appropriations Act

The Consolidated Appropriations Act (CAA) includes provisions designed to prevent patients from losing access to an in-network provider (including in-network facilities) while in a course of treatment.

Specifically, the Act applies to so-called “continuing care patients” who would lose such access to in-network benefits as a result of:

• a termination of a provider’s network contract;
• a termination of benefits due a change in the terms of a provider’s contract; or
• in the case of an insured health plan, termination of the insurer’s contract with the provider.

A “continuing care patient” is one who is:

• undergoing a course of treatment for a “serious and complex condition” from the provider;
• undergoing a course of institutional or inpatient care from the provider;
• scheduled to undergo nonelective surgery from the provider, including postoperative care;
• pregnant and undergoing a course of treatment for the pregnancy from the provider; or
• receiving treatment for a terminal illness from the provider.

A “serious and complex condition” means:

• in the case of an acute illness, a condition that is serious enough to require specialized medical treatment to avoid the reasonable possibility of death or permanent harm; or
• in the case of a chronic illness or condition, a condition that (1) is life-threatening, degenerative, potentially disabling, or congenital; and (2) requires specialized medical care over a prolonged period of time.

In the case of a termination of a contract or benefits affecting a continuing care patient’s access to treatment or benefits, a plan must:

• notify the patient in a timely manner of the termination and of the patient’s right to elect continued transitional care from the provider;
• provide the patient with an opportunity to notify the plan of the need for transitional care; and
• permit the patient to elect to continue to receive in-network benefits under the plan from the terminated provider
  • for a period beginning on the date of the notice of termination and ending on the earlier of 90 days thereafter; or
  • on the date the patient no longer qualifies as a continuing care patient.

Takeaways:

• The Continuity of Care provisions are effective for plan years beginning on and after January 1, 2022.
• The CAA imposes a “complimentary obligation” on in-network providers, meaning they must accept in-network benefits from plans “as payment in full for services” provided to continuing care patients.
• Continuity of Care requirements do not apply to terminations due to a provider’s failure to meet quality standards or fraud.
• Plans will need to modify their plan language and SPDs to accommodate the Continuity of Care rules.
• Plan will likely want to ensure that their network contracts are consistent with the requirements of the CAA.
  • The Act is “self-enforcing” in the sense that it regulates the conduct of both plans and providers irrespective of what may be in their network contracts.

We expect that the government will issue further regulations and guidance.  This includes matters such as:

• definitions for terms like “specialized medical treatment” and “chronic illness or condition” and
• details surrounding the notification and election process.