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Private Practice Column

Episode 26:  The Slings and Arrows of Outrageous Fortune

“Stand up for yourself.
Never give any one permission to abuse you.”

– Lailah Gifty Akita, founder of Smart Youth Volunteers Foundation
It’s 2024 and we are still doing prior authorization.  On the physician end, we are doing it old school: playing keep away scheduling phone calls, faxing reams of paperwork, and the kids running the game always changing the rules. The truth is, everything I’ve had to learn about prior authorization I learned in grammar school.

“5, 6, 7, 8, schlemiel, schlimazel, hassenpfeffer corporated”

This was the opening of the ”Happy Days” spinoff of “Laverne and Shirley”.  They were an odd couple kind of sitcom. They were originally introduced as the Fonz’s rough and tough main squeezes but later retconned to be more at odds personality-wise a là Tony Randall and Jack Klugman in the TV version of “The Odd Couple.”  It ran for seven seasons. One of the supporting cast members Michael McKean (“Lenny”) went on to star in “This is Spin̈al Tap.”

In a way, prior authorization is like a sitcom. You have canned responses, a predictable plot line, and you know when you’ve jumped the shark.

For decades now, we have been dancing the dance of a thousand idiots in prior authorization.  They make up guidelines, cherry picked from our own literature, often taken out of context, draft a physician, usually outside of our specialty, who has never seen our patient or the scans and deemed them capable of making clinical decisions with really world consequences.  All with no accountability of anyone.

So prior authorization reform is needed in a very immediate and effective way.  Recently, Medicare passed

a much-needed and hard-fought reform for participants in Medicare Advantage plans.  (https://www.cms.gov/newsroom/press-releases/cms-finalizes-rule-expand-access-health-information-and-improve-prior-authorization-process#:~:text=This%20final%20rule%20establishes%20requirements,and%20reduce%20disruptions%20for%20beneficiaries). 

There are requirements for 72 hour turnaround in decisions, and will be forced to publicly report authorization metrics.  Unfortunately, even though if you think through this, it is probably able to be implemented in a quarter or two, the payers have until 2026 to implement these changes.  And that give them a solid 2-3 years to come up with ways around the rule, or reinvent themselves or create new entities not subject to these rules.  It is a start. 

However, many payers already have the inside track on how to evade regulation.  Why? Because industry people already work INSIDE HHS and CMS.  This is regulatory capture.  When you regulate the regulators, there is opportunity for evasion of their rules – from non-enforcement, to favorable judgments, to forcing entities that are supposed to investigate you (the FTC, the OIG) to drop suits or do kabuki investigations.  There is a significant lobby, I don’t have to tell you. There are no coincidences when it comes to the payer space.  And, to be honest, it is not difficult to how the payers insinuate into not just regulation, but also politics, and even likely legal enforcement.  Their influence is enormous.  So, the only tool to fight something that is everywhere is to either fight like hell, or exit the space.  Since most of us cannot just exit the space, we have one option left. 

What we need to do to fix it is to first – get past the idea that we don’t need to fight this.  It’s all our fight and no one else will help us.  Second, is to speak truth to power.  Call out the regulatory agencies for suddenly dropping investigations into the big payers.  Third, connect with lawmakers.  Now, most of the lawmakers you will encounter that you can actually educate and get through to will not be the chairperson of the committee you need.  The one most pertinent is Energy and Commerce (https://energycommerce.house.gov/).  Most of the doctors in Congress are ON this committee.  The insurance lobby targets this committee specifically because of its influence on regulations regarding payers.  It is critical to be in contact with the members of this committee.  Bring to them stories of your practice, of patients affected by insurance denials, and of real life asks. 

The asks of prior authorization reform are threefold:

  1. Accountability of payers for bad decisions that negatively affect patients. Recently, one of my patients was denied a microdiscectomy, by another neurosurgeon, and then developed a deficit and needed emergency surgery
  2. Fast implementation of regulatory laws 48-to-72-hour turnaround time is very doable. If they can batch deny claims 50 a second, they can certainly determine them faster than they are right now
  3. Electronic submission of claims and determinations. We can track our Amazon package from the moment it leaves the warehouse until it gets to your front door.  Seriously?

So this is Xanadu, where we want to get to.  It is nowhere near where we need to do, but is a list of coherent and reasonable asks.  Which means of course, the insurance cartel will fight it tooth and nail.  While we dream about this utopia, there are REAL TIME actions we can do, that will not only make the insurers and their minions uncomfortable. 

Again, there are three things any of us can do right now:

  1. This is from one of our colleagues, while we were bellyaching on a text thread about this very thing, suggested to us. When you speak to a physician reviewer, document their name and NPI number as a clinical decision maker for the patient.  The classic refrain, for when a denied authorization is that they are protecting patients from unindicated surgery.  It is not a stretch to see this.  But, more often than not, delayed treatments results in negative outcomes for patients.  The insurers in turn claim that the patient could “just go to the ER” to get treatment.  There are real costs for them, especially if they are in a managed care plan that the institution or you do not take.  Patients get surgery and the millisecond they are stable, they are transferred.  The patient may get a wound infection because you are no longer managing them, legal action is taken, and you are of course, liable.  So really it is not a reasonable thing for a reviewing surgeon to deny a surgery that has clear indications.  The patients have a reasonable expectation to get care that they are paying for.  And this, of course, is how insurers make money – by taking the premiums (or Medicare stipends) and NOT paying the physicians.  So, the reviewing physician, if they are doing the right thing, should not object to you documenting their name and NPI number.  Of course, I would add if they are board certified or not and/or fellowship-trained

  2. Have the patient on the phone when you are doing the review. I think it’s reasonable to disclose this at any point of the call.  It is a loophole or capricious rule the payers may move quickly to stop, but you can tell the patient this as well, and they obviously being the customer, may have a significant bone to pick with this.

  3. Enable patients with the information regarding a negative outcome of authorization. Tell the patient what you told the insurer, who you spoke to, and the reasons given to you.  The patients can file a complaint with the California Department of Insurance.  (https://www.insurance.ca.gov/01-consumers/101-help/). This easy and can help you leverage their dissatisfaction to make things uncomfortable for the payer. 

None of these things, even if they came to fruition would fix the problem.  It is a fight that is hard to fight and will obviously be countermeasure after countermeasure thrown our way.  In the chess game of healthcare, and especially taking care of patients, we can and must get them into check.  No matter how big a piece you are on the board, you have to fight like hell. 

That may mean holding court with folks you would rather not spend time with or trust with your most sacred professional thing – your career and your art.  Neurosurgery, as a collective has to suck it up and work with and within the AMA if we want policy to work in a common-sense fashion rather than whatever way the wind blows. 

A possible way to re-create the AMA is to make CPT freeware.   Much like Linux operating systems where there is no charge for its use, and the source code is freely available to all users who can modify it as they like and share fixes, upgrade, and modifications to the channels so we all benefit.  If this is too socialist for the most discerning, creating a market place of CPTs put out by respective entities like the AAOS, CNS/AANS, and ABIM (for example) that act much like a committee and create a work product that the AMA oversees.  In other words, de-incentivize the need to own CPTs by opening the marketplace and deregulate it.  One might argue the AMA is functioning a bit like a monopoly, and it needs to function more like a regulatory board or advisory commission.  Thereby more societies become involved, and they can do away with quite a bit of administrative bloat.  It would be a bold move and arguably it could implode the organization.  We cannot even be at the table for such a discussion if we huddle amongst ourselves and moan about how no one listens to us.  Certainly, we could not look ourselves in the mirror and feel legitimized by our ill-humored misanthropy.

If we want it to change, we have to work within, not without.  Democracy is a participatory sport and if neurosurgery wants to be heard, we have to be in the game.  If we are not, then we deserve to be on the sidelines.  Nothing will change and we would only have ourselves to blame.