Colorado § 10-16-121 - Required contract provisions in contracts between carriers and providers - definitions.

§ 10-16-121. Required contract provisions in contracts between carriers and providers - definitions.

(1) A contract between a carrier and a provider or its representative concerning the delivery, provision, payment, or offering of care or services covered by a managed care plan must make provisions for the following requirements:

(a) The contract must contain a provision stating that neither the provider nor the carrier is prohibited from protesting or expressing disagreement with a medical decision, medical policy, or medical practice of the carrier or provider.

(b) (I) The contract must contain a provision that states the carrier may not take an adverse action against a provider because the provider expresses disagreement with a carrier's decision to deny or limit benefits to a covered person or because the provider assists the covered person to seek reconsideration of the carrier's decision or because a provider discusses with a current, former, or prospective patient any aspect of the patient's medical condition, any proposed treatments or treatment alternatives, whether covered by the plan or not, policy provisions of a plan, or a provider's personal recommendation regarding selection of a health plan based on the provider's personal knowledge of the health needs of such patients.

(II) The contract between a carrier and the provider must state that the carrier may not take an adverse action against a provider because the provider, acting in good faith:

(A) Communicates with a public official or other person concerning public policy issues related to health-care items or services;

(B) Files a complaint, makes a report, or comments to an appropriate governmental body regarding actions, policies, or practices of the carrier the provider believes might negatively affect the quality of, or access to, patient care;

(C) Provides testimony, evidence, opinion, or any other public activity in any forum concerning a violation or possible violation of any provision of this section;

(D) Reports what the provider believes to be a violation of law to an appropriate authority; or

(E) Participates in any investigation into a violation or possible violation of any provision of this section.

(c) Any contract providing for the performance of claims processing functions by an entity with which the carrier contracts must require such entity to comply with section 10-16-106.5 (3), (4), and (5).

(d) The contract must contain a provision that the provider shall not be subjected to financial disincentives based on the number of referrals made to participating providers in the health plan for covered benefits so long as the provider making the referral adheres to the carrier's or the carrier's intermediary's utilization review policies and procedures.

(e) The contract must contain a provision that states the carrier shall not take an adverse action against a provider or provide financial incentives or subject the provider to financial disincentives based solely on a patient satisfaction survey or other method of obtaining patient feedback relating to the patient's satisfaction with pain treatment.

(f) (I) A provision that prohibits the carrier from taking an adverse action against a provider or subjecting the provider to financial disincentives based solely on the provider's provision of, or assistance in the provision of, a legally protected health-care activity, as defined in section 12-30-121 (1)(d), in this state, so long as the care provided did not violate Colorado law.

(II) As used in this subsection (1)(f), "adverse action" means refusing or failing to pay a provider for otherwise covered services as defined in the applicable health benefit plan.

(2) Nothing in subsection (1) of this section shall be construed to prohibit a carrier from:

(a) Including in its provider contracts a provision that precludes a provider from making, publishing, disseminating, or circulating directly or indirectly or aiding, abetting, or encouraging the making, publishing, disseminating, or circulating of any oral or written statement or any pamphlet, circular, article, or literature that is false or maliciously critical of the carrier and calculated to injure such carrier; or

(b) Terminating a contract with a provider because such provider materially misrepresents the provisions, terms, or requirements of a carrier's products; or

(c) Terminating a contract with a provider pursuant to a contract provision that allows either party to the contract to terminate the contract without cause pursuant to specific notice requirements that are the same for both parties.

(3) Each contract between a carrier and an intermediary shall contain a provision requiring that the underlying contract authorizing the intermediary to negotiate and execute contracts with carriers, on behalf of the providers, shall comply with the requirements of subsection (1) of this section.

(4) The commissioner shall not act to arbitrate, mediate, or settle disputes between a carrier, its intermediaries, or a provider network arising under or by reason of a provider contract or its termination. Existing dispute resolution mechanisms available in contract law shall be used to resolve such disputes. Notwithstanding any provision of law to the contrary, the commissioner is not prohibited from enforcing the applicable provisions of this article.

(5) The commissioner shall, after notice and hearing, promulgate reasonable regulations as are necessary or proper to carry out the requirements of this section.

(6) No contract between a carrier and a provider or its representative or between a carrier and an intermediary that concerns the delivery, provision, payment, or offering of care or services covered by a managed care plan shall be issued, renewed, amended, or extended in this state after January 1, 1997, unless it complies with the requirements of this section.

(7) (a) A provider who is aggrieved by a violation of this section may bring an action for injunctive relief in a court of competent jurisdiction and may seek recovery of reasonable court costs. This section does not change the standards for obtaining injunctive relief.

(b) If a court deems an action frivolous, the court may award costs to the defendant.

(8) As used in this section:

(a) "Adverse action" means a decision by a carrier to terminate, deny, or otherwise condition a provider's participation in one or more provider networks, including a decision pertaining to participation in a narrow network or allocation within a tiered network.

(b) "Narrow network" means a reduced or selective provider network that is a subgroup or subdivision of a larger provider network and from which providers who participate in the larger network may be excluded.

(c) "Tiered network" means a provider network in which:

(I) Providers are assigned to, or placed in, different benefit tiers, as determined by tiering; and

(II) Patients receive benefits and pay the copayment, coinsurance, or deductible amounts that are associated with the benefit tier to which the provider from whom services were received is assigned.

(d) "Tiering" means a system that compares, rates, ranks, tiers, or classifies a provider's performance, quality of care, or cost of care against objective standards or against the practice or performance of other health-care providers. "Tiering" includes quality improvement programs, pay-for-performance programs, public reporting on health-care provider performance or ratings, and the use of tiered or narrowed networks.

Source: L. 96: Entire section added, p. 569, § 3, effective July 1. L. 99: (1)(c) added, p. 1142, § 3, effective January 1, 2000. L. 2000: (1)(d) added, p. 1064, § 2, effective August 2, 2000. L. 2003: (4) amended, p. 2494, § 2, effective June 5. L. 2017: (1) amended and (7) and (8) added, (HB 17-1173), ch. 120, p. 421, § 1, effective July 1. L. 2018: (1)(e) added, (HB 18-1007), ch. 225, p. 1431, § 2, effective January 1, 2019. L. 2023: (1)(f) added, (SB 23-188), ch. 68, p. 242, § 3, effective April 14.

Cross references: For the legislative declaration contained in the 1996 act enacting this section, see section 1 of chapter 122, Session Laws of Colorado 1996. For the legislative declaration contained in the 2000 act enacting subsection (1)(d), see section 1 of chapter 238, Session Laws of Colorado 2000. For the legislative declaration in SB 23-188, see section 1 of chapter 68, Session Laws of Colorado 2023.

ANNOTATION

This section and § 10-16-705 (7) are expressions of the intent of the general assembly that termination clauses should be permitted in contracts between doctors and health care providers. Grossman v. Columbine Medical Group, Inc., 12 P.3d 269 (Colo. App. 1999).