Any willing provider (AWP) legislation typically calls for a health plan to contract with any provider willing to meet the terms and conditions, and accept the reimbursement levels, of a health plan. 1 J. OF HEALTH & LIFE SCIENCES L. 82-83.
While proponents of such state laws argue that they give consumers more choice, opponents argue that the laws raise costs and adversely impact quality of care. http://www.amcp.org/wws_anywillingprovider/
In a landmark decision in 2003, the Supreme Court upheld Kentucky’s any willing provider law and explained that the Employee Retirement Income Security Act (ERISA) does not preempt such statutes. Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329 (2003).
According to the Court, Kentucky’s laws “regulate” insurance by imposing conditions on the right to engage in the business of insurance.
In order to fall within ERISA’s saving clause those conditions must also substantially affect the risk pooling arrangement between insurer and insured. The Court found that Kentucky’s AWP statutes pass this test by altering the scope of permissible bargains between insurers and insureds.