What a Marketplace Plan's Network Rules Require

Answer first: adequacy is a condition of being sold on the exchange

45 CFR 156.230(a)(1) states the general requirement. A qualified health plan that uses a network of providers "must ensure that the provider network consisting of in-network providers, as available to all enrollees" includes essential community providers in accordance with § 156.235; maintains a network "that is sufficient in number and types of providers, including providers that specialize in mental health and substance use disorder services, to ensure that all services will be accessible without unreasonable delay"; and is consistent with the rules for network plans of section 2702(c) of the Public Health Service Act.

That phrase — accessible without unreasonable delay — is the substantive standard. Everything else in the section is machinery for testing it.

The testing machinery differs by state. For a plan in a federally facilitated exchange in a state that CMS has not determined to have an Effective Provider Access Review Program, paragraph (a)(2)(i) requires compliance with the sufficiency requirement by meeting time and distance standards established by the exchange for plan years beginning on or after January 1, 2023, and appointment wait time standards established by the exchange for plan years beginning on or after January 1, 2025. The regulation states that both sets of standards "will be developed for consistency with industry standards and published in guidance," and that quantitative reviews of time and distance compliance will use issuer-submitted data. The numbers themselves live in that guidance rather than in the regulation.

A plan that does not satisfy those standards is not automatically excluded. Paragraph (a)(2)(ii) requires it to include in its certification application "a justification describing how the plan's provider network provides an adequate level of service for enrollees and how the plan's provider network will be strengthened and brought closer to compliance" before the plan year starts, with supporting information as the exchange requests. Paragraph (a)(3) permits the exchange to grant an exception where it determines that making the plan available is in the interests of qualified individuals in the state.

The essential community provider rule is about who, not how far

Section 156.235 adds a second dimension. A qualified health plan issuer using a provider network must ensure that each plan's network "includes a sufficient number and geographic distribution of essential community providers (ECPs), where available, to ensure reasonable and timely access to a broad range of such providers for low-income individuals or individuals residing in Health Professional Shortage Areas within the QHP's service area."

For a plan applying for certification through a federally facilitated exchange, the rule sets out what a demonstration looks like. The network must include at least a minimum percentage, as specified by HHS, of available ECPs in the service area collectively across all ECP categories, and at least a minimum percentage within certain individual categories. The regulation supplies the counting conventions: multiple providers at a single location count as a single ECP on both sides of the calculation, and for tiered networks providers count only if contracted within the tier that results in the lowest cost-sharing obligation — so in a two-tier PPO arrangement, only preferred providers count.

The issuer must also offer contracts to all available Indian health care providers in the service area, applying the special terms and conditions required by federal law and regulations as referenced in the recommended model addendum HHS developed, and to at least one ECP in each of eight categories in each county in the service area where such a provider is available and provides covered services.

The eight categories are named in the rule: Federally Qualified Health Centers, Ryan White Program Providers, Family Planning Providers, Indian Health Care Providers, Inpatient Hospitals, Mental Health Facilities, Substance Use Disorder Treatment Centers, and Other ECP Providers. The last category is itself defined by a list — Rural Health Clinics, Black Lung Clinics, Hemophilia Treatment Centers, Sexually Transmitted Disease Clinics, Tuberculosis Clinics, and Rural Emergency Hospitals.

The directory has an accuracy standard and an accessibility test

Section 156.230(b) governs the provider directory, and it does two separate things.

Paragraph (b)(1) requires the issuer to make the directory available to the exchange for online publication in accordance with HHS guidance and to potential enrollees in hard copy on request, and — a small requirement with large consequences — "in the provider directory, a QHP issuer must identify providers that are not accepting new patients."

Paragraph (b)(2) sets the content and the accessibility standard. For plan years beginning on or after January 1, 2016, an issuer must publish "an up-to-date, accurate, and complete provider directory, including information on which providers are accepting new patients, the provider's location, contact information, specialty, medical group, and any institutional affiliations, in a manner that is easily accessible" to enrollees, prospective enrollees, the state, the exchange, HHS and OPM.

Easily accessible is then defined rather than left as an adjective. The general public must be able to view all of the current providers for a plan "on the issuer's public Web site through a clearly identifiable link or tab and without creating or accessing an account or entering a policy number." And where an issuer maintains multiple provider networks, the general public must be able to easily discern which providers participate in which plans and which networks.

The no-login clause is the operative one for anyone comparing plans before buying. A directory that can only be reached after enrollment cannot inform the decision to enrol, and the rule addresses that directly.

When a provider leaves the network mid-year

Paragraph (d) covers provider transitions for a qualified health plan issuer in a federally facilitated exchange, and it has two limbs.

The first is notice. The issuer must "make a good faith effort to provide written notice of discontinuation of a provider 30 days prior to the effective date of the change or otherwise as soon as practicable," to enrollees who are patients seen on a regular basis by the provider or who receive primary care from the provider — and the rule states this applies "irrespective of whether the contract is being discontinued due to a termination for cause or without cause, or due to a non-renewal."

The second is continuity of care. Where a provider is terminated without cause, the issuer must allow an enrollee in an active course of treatment "to continue treatment until the treatment is complete or for 90 days, whichever is shorter, at in-network cost-sharing rates."

Active course of treatment is defined, and the definition is narrower than the phrase sounds. It means an ongoing course of treatment for a life-threatening condition, defined as a disease or condition for which likelihood of death is probable unless the course of the disease or condition is interrupted; an ongoing course of treatment for a serious acute condition, defined as a disease or condition requiring complex ongoing care which the covered person is currently receiving, such as chemotherapy, radiation therapy or post-operative visits; the second or third trimester of pregnancy, through the postpartum period; or an ongoing course of treatment for a health condition for which a treating physician or health care provider attests that discontinuing care by that provider would worsen the condition or interfere with anticipated outcomes.

The fourth branch is the general one and it turns on an attestation by the treating clinician. And paragraph (d)(2)(ii) makes the decision reviewable: any issuer decision on a continuity of care request "must be subject to the health benefit plan's internal and external grievance and appeal processes in accordance with applicable State or Federal law or regulations."

The out-of-network clinician in an in-network building

Paragraph (e) addresses a specific and common billing situation: an essential health benefit provided by an out-of-network ancillary provider inside an in-network setting. Beginning for the 2018 and later benefit years, for a network to be deemed adequate, each qualified health plan must do one of two things.

Either it counts the cost sharing the enrollee paid for that benefit toward the enrollee's annual limitation on cost sharing — notwithstanding the ordinary rule in § 156.130(c) that would exclude out-of-network spending.

Or it provides written notice to the enrollee, by the longer of when the issuer would typically respond to a timely submitted prior authorization request or 48 hours before the benefit is provided, that additional costs may be incurred for an essential health benefit provided by an out-of-network ancillary provider in an in-network setting — including balance billing charges, unless such costs are prohibited under state law — and that any additional charges may not count toward the in-network annual limitation on cost sharing.

The structure is worth noting: the plan may either absorb the accounting consequence or warn in advance, but not neither. And the notice branch has a defined lead time rather than an open one.

What these rules do and do not settle

Read together, the two sections establish that a network is a regulated object. It has to include named categories of provider, be sufficient for services to be accessible without unreasonable delay, be documented in a directory that meets a stated accuracy and accessibility standard, and carry defined obligations when it changes.

What the rules do not do is guarantee any individual an appointment, a specific clinician, or a particular timeframe. Time and distance standards and appointment wait time standards are established by the exchange and published in guidance, and a plan that fails them may still be certified on a justification or an exception. The regulation itself sets the framework and the review mechanism, not a personal entitlement.

There is also a scope point that decides whether any of this applies. These are certification standards for qualified health plans under part 156, subpart C. An employer-sponsored plan, a Medicaid managed care plan and a Medicare Advantage plan each have their own network rules in other parts of the Code, and a directory or continuity-of-care obligation described here does not transfer to them because the plans look similar from the outside.

The single most usable provision for someone comparing plans is the accessibility definition in paragraph (b)(2)(i): the full current provider list must be visible on the public website through a clearly identifiable link, without an account and without a policy number. That is a fact about a plan a person can check before deciding anything.