251 Part III.B.1-2. Although the White Paper does refer, in this context, to an NAIC document dealing specifically with ERISA, See supra the absence of further discussion of ERISA preemption and direct contracting arrangements is somewhat conspicuous here. Apparently other readers have made this observation as well. Meeting Minutes from Risk-Bearing Entities Working Group of See the State and Federal Health Insurance Legislative Policy (B) Task Force 1 (Dec. 16, 1996) (on file with the NAIC). 252 NAIC White Paper, note 8, at 27-28. See supra 253 at 28-32. See id. 254 Unland, note 12, at 65. See supra 255 Part IV.A.1-2. See supra 256 EHCIP Letter, note 94 (discussing the views on the NAIC White Paper). See generally supra EHCIP’s 257 See id. 258 See id. 259 See id. 260 See id. 261 The Employer Health Care Innovation Project (EHCIP) extends this argument to downstream arrangements as follows: risk Id. “The to a consumer whose HMO contracts with an independent medical group to provide medical services for a capitation payment is defined by the capacity of the HMO to deliver promised benefits, and not by the financial condition of the medical Id. group.” 262 See notes 113-15 and accompanying text for the factors in supra Pireno. 263 EHCIP Letter, note 94, at 2. See supra 264 See id. 265 See id. 266 The EHCIP has elaborated on this point elsewhere. Memorandum from the Employer Health Care Innovation Project on See id. See Self-Insurance 1 (Mar. 14, 1996) [hereinafter EHCIP Project]. 267 EHCIP Letter, note 94, at 2. However, an insurance carrier that bears risk with little control over the delivery of See supra “[u]nlike services, a provider group will have substantial control over how services are provided.” Id.
251 See supra Part III.B.1-2. Although the White Paper does refer, in this context, to an NAIC document dealing specifically with ERISA, the absence of further discussion of ERISA preemption and direct contracting arrangements is somewhat conspicuous here. Apparently other readers have made this observation as well. See Meeting Minutes from Risk-Bearing Entities Working Group of the State and Federal Health Insurance Legislative Policy (B) Task Force 1 (Dec. 16, 1996) (on file with the NAIC). 252 See NAIC White Paper, supra note 8, at 27-28. 253 See id. at 28-32. 254 See Unland, supra note 12, at 65. 255 See supra Part IV.A.1-2. 256 See generally EHCIP Letter, supra note 94 (discussing the EHCIP’s views on the NAIC White Paper). 257 See id. 258 See id. 259 See id. 260 See id. 261 Id. The Employer Health Care Innovation Project (EHCIP) extends this argument to downstream arrangements as follows: “The risk to a consumer whose HMO contracts with an independent medical group to provide medical services for a capitation payment is defined by the capacity of the HMO to deliver promised benefits, and not by the financial condition of the medical group.” Id. 262 See supra notes 113-15 and accompanying text for the factors in Pireno. 263 See EHCIP Letter, supra note 94, at 2. 264 See id. 265 See id. 266 See id. The EHCIP has elaborated on this point elsewhere. See Memorandum from the Employer Health Care Innovation Project on Self-Insurance 1 (Mar. 14, 1996) [hereinafter EHCIP Project]. 267 See EHCIP Letter, supra note 94, at 2. However, “[u]nlike an insurance carrier that bears risk with little control over the delivery of services, a provider group will have substantial control over how services are provided.” Id.
Witten-Regulation-of-Downstream-and-Direct-Risk-Contracting-by-Health-Care-Providers-1997.docx