Payer groups on Monday slammed a CMS proposed rule to streamline the prior authorization process, arguing the comment period was unreasonably and perhaps illegally short, the effective dates were unrealistic and the rule heaps further burden on a health system still digesting other regulatory changes while swamped by the coronavirus pandemic.
The rule first proposed in mid-December is part of the Trump administration's push to improve the electronic exchange of health data between payers, providers and patients, and builds off massive interoperability regulations finalized in March.
It focuses on standardizing and speeding the prior authorization process, in which a physician must get the green light from a patient's insurer for medication or treatment before administering it.
Prior authorization has become increasingly en vogue among insurers as a way to keep costs low but is generally loathed by clinicians for delaying care, adding to paperwork requirements and leading to physician burnout.
Industry comments on the proposed rule were split on establishment lines. Provider and hospital groups cheered CMS' push to revamp prior authorization and called for more stringent requirements for payers while insurers argued it can't be finalized as is given the current state of the sector.
"Introducing substantial additional requirements and demands in an environment already facing significant resource constraints and limited time for implementation risks distracting from the crucial fight against the pandemic as we enter a key phase in defeating COVID-19," Matt Eyles, CEO of payer lobby America's Health Insurance Plans, wrote in comments on the rule.
Not enough time
Stakeholders across the healthcare industry berated CMS for the extraordinarily tight turnaround time for comments on the rule, but major payer groups took it a step further, arguing the agency couldn't consider finalizing the regulation given the truncated comment period.
The rule was proposed Dec. 10 but not published in the Federal Register until Dec. 18. That gave the industry only 17 days to review the almost 100-page proposal and draft comments, a time period that included two federal holidays and six weekend days.
Compared to the usual period between 30 and 60 days, that short turnaround time for comments was highly irregular and possibly a violation of the Administrative Procedure Act, AHIP alleged — not to mention a factor making it difficult to analyze the technically complex rule and write targeted comments.
"To our knowledge, this Proposed Rule has the shortest comment period for any proposed rule of this scope and complexity proposed by CMS during the term of the current Administration," Eyles said. AHIP asked CMS for at least another 45 days to review the rule.
If finalized, the rule would require payers to build and maintain standardized application programming interfaces, technology that allows different computer systems to send and receive information, for payer-to-provider and payer-to-patient sharing of health data, including prior authorization data.
The APIs already in place are new, and many haven't been created, Ceci Connolly, CEO of the Alliance of Community Health Plans, a group representing integrated nonprofit plans, commented on the rule. In order for payers to inform CMS whether its proposals are viable, payers need to evaluate existing processes and pull data from their provider partners, and weren't able to during the short comment period.
CMS didn't give a reason for the quick timeline, but has been rushing to finalize last-minute policies before President-elect Joe Biden is inaugurated Jan. 20 and shepherds in a new health administration.
Despite the deadline, CMS received 250 comments on the proposed rule, which would affect payers offering plans participating in the Affordable Care Act exchanges, Medicaid and the Children's Health Insurance Program, and kick into gear January 2023.
Getting these new technologies and processes in place by 2023 may not be possible, though they build on existing interoperability regulations, given the state of the industry, insurance lobbies argued. AHIP suggested that if CMS does finalize the rule, it should push initial deadlines back to January 2024 and stagger implementation dates afterwards, while allowing payers to apply for exemptions.
"Much of this proposed rule is built on top of an interoperability framework that is currently in the process of being implemented; any comments on those provisions would only be conceptual as the system is not in place to know what those new proposed requirements would mean in practice," commented Margaret Murray, CEO of Association for Community Affiliated Plans, a trade association representing 78 safety net plans.
And despite harmonization with interoperability regulations, the proposed rule comes as industry is still digesting a flurry of new rules finalized in the final days of the Trump administration, complicating rule analysis and potential implementation. Along with interoperability, industry is still working to implement concurrent policies, including sweeping changes to HIPAA privacy stipulations and new price transparency requirements.
"It is unclear how this proposed rule interacts with these related rules that also require significant data exchange provisions," ACHP's Connolly wrote.
However, major EHR vendors and health IT experts have noted in the past the interoperability regulations finalized in March shouldn't be that difficult for payers and providers to implement, as the back-end functions needed to come into compliance are already in place across large swaths of the industry. The Trump administration has also twice delayed compliance deadlines for the rules, to try to free up resources to combat COVID-19.
Providers off the hook
Insurance groups also expressed frustration that the burden of tackling prior authorization fell on them. The rule doesn't include parallel obligations on EHR vendors or providers to connect to the proposed technology requirements, AHIP pointed out, noting adoption of the new processes is integral across all stakeholders.
AHIP suggested regulators propose comparable regulations on providers to ensure the new technologies are used, and that CMS should build incentives for providers to adopt electronic prior authorization, such as linking it to existing Medicare payment adjustment programs.
CMS should also establish specific requirements for EHR developers to include the functions in their technology in order to be federally certified, AHIP said.
Provider groups seemed to agree there wasn't clarity about how much they were expected to invest in their EHRs to accommodate the rule. As a result of that uncertainty, CMS should make sure there's enough standardization in payer data exchange to sidestep any inconsistencies, the Federation of American Hospitals, a trade association representing for-profit hospitals, commented.
The American Medical Association agreed with its payer peers and said providers should receive positive financial incentives to participate — and that CMS should further test and vet the rule before finalizing.
"Absent modifications to this initial testing phase, we have concerns that this proposal will fail to achieve its goals due to insufficient participation, will confuse payers about their obligations, will inadvertently increase burden on physician practices, and will fall short of providing patients with access to meaningful information about their health care," AMA CEO James Madara commented.
Miffed about MA
Though many agreed the comment period was oddly speedy, providers were significantly more supportive of the proposed rule as is, especially prior authorization API creation and a stipulation in the rule that payers must tell them why a prior authorization request was denied.
However, their main gripe with the proposal was that it doesn't include Medicare Advantage plans — something CMS said in the rule it didn't believe was necessary but provided little rationale for — with the American Hospital Association saying it was "deeply disappointed" in the omission.
"The notable exclusion of MA plans is extremely troubling and significantly reduces the potential impact of the regulation," AHA wrote in its comments.
About one-third of Medicare beneficiaries are in the privately run plans, so excluding that patient population from the rule could cause more variation in prior authorization processes in the U.S. That limits the potential return on investment for providers thinking of adopting the new standardized methodology, AHA wrote, and clashes with previous administration regulations standardizing data sharing that did include MA plans.
Providers also said the rule gave payers too much time to deliberate over a prior authorization decision.
If finalized, the rule would also require payers — not including plans on the federal exchanges — to decide on a prior authorization request within 72 hours for urgent needs and seven days for standard requests.
AHA applauded creating deadlines but called the 72-hour and seven-day windows "lenient," as prior authorization decisions have a direct and near-term impact on care. The lobby wants CMS to shorten those windows to 24 hours and 72 hours, respectively, and have it apply to plans on the exchanges.