Despite the Affordable Care Act’s goal to homogenize appeal procedures and patients’ rights across the union, five years later we are still faced with a cacophony of different rules for preservice benefit verification across the various states and payers. The net result is a difficult road to payment for the makers of novel medical technologies and a sometimes seemingly arbitrary restriction to care for patients based upon factors like geography more than medical necessity.

Just as patients have a legitimate interest in receiving the best care, insurance companies have a legitimate interest in maintaining strong enough margins in order to sustain their organization. The developers of life-saving and life-enhancing technologies are often on the sideline of this tug of war. In recent years, many manufacturers have chosen to act in the interest of promoting patient access to care and new technology by providing some support in the reimbursement process. While many insurers have seen the involvement as a welcomed way to gain a better understanding of a new technology, some have seen this as a drain on resources and are taking actions to make the appeal process for new technology more arduous for providers and more onerous for patients.

The laws of nearly every state provide significant protections for individuals that seek medical treatment and subsequently submit a claim to their insurer. Unfortunately for patients, the laws for preservice determinations/authorizations are not as clear. In a frequently-asked-question document, the Department of Labor, the agency that sets the regulations regarding employer-based plans, has taken an anti-patient and anti-employee position. The Department of Labor has stated, that when a prior authorization is not specifically required by the payer, a denied or unheard request for prior approval of treatment does not create an appealable event.  

Several plans, especially in the Midwest and South Eastern United States, have taken the above stance and made it policy to offer some form of “courtesy review” of technology to determine if a treatment, device or procedure will be covered. They have then taken the position that a courtesy review is not a prior authorization and is therefore not subject to appeal rights. To their credit, some plans are offering alternative appeal structures for courtesy reviews that run parallel with their ordinary appeal process. However, those appeal structures generally do not allow for an external review by an independent medical reviewer.

By requiring a patient to pay for a service before having full appeal rights, payers are shifting significant risk to patients. Most patients do not have the resources to pay for a medical procedure or device out of pocket, with the hope that their insurance will make them whole. A patient’s access to new technology becomes effectively blocked by the economics of their situation. It is important to remember that we are talking about a procedure or device that the patient’s physician feels is medically necessary and the best test or treatment for the patient. The result is a chilling effect on the introduction of new technology to certain markets.

The laws across the states need to be homogenized. A person’s geographical location should have no bearing on the treatment of their medical conditions. The best solution for patients would be to include in the federal definition of Adverse Coverage Decision: “When a lack of a positive coverage policy exists for a treatment, device, product, or procedure that has been determined by a physician to be medically necessary and the best course of treatment for a particular patient.”  Only when all patients are given the ability to appeal preservice determinations and authorizations will the original intent of the Affordable Care Act to create a fair and consistent appeal structure be fulfilled.