Editor’s note: This article is part of a yearlong series, Advocacy 201, which focuses on the work of the Advocacy Council to improve the practice of orthopaedic surgery.
When I ask orthopaedic surgeons to describe their greatest frustrations in clinical practice, the hassle of prior authorization is always one of the top three responses. It almost seems automatic, regardless of how much you document, that certain tests and treatments will trigger a telephone call with an insurance company representative of variable qualifications to approve what the physician and the patient agreed was medically necessary. Some of the calls are beyond reason, demanding that you schedule an appointment to speak with a decision-maker. There are often long waits in even arranging the phone call with the reviewer, and when contact is made, the reviewer often has the information needed to make the decision. Often, the standards set by the insurance companies are not orthopaedically recognized standards.
Many orthopaedic surgeons have implored AAOS to call for legislation to curb this intrusive and often unnecessary insurance company technique, but that request is far more complex than many realize. Most commercial insurance products are regulated by the insurance commissioner of the individual states and not under the purview of the federal government. Many orthopaedic surgeons may be unaware of the name of their state’s insurance commissioner, but that person has the authority to enforce rules on the insurance company.
Some insurance products, specifically Medicare Advantage, can be effectively influenced by federal legislation. Medicare Advantage is also called Medicare Part C and is fundamentally different from “conventional” Medicare (i.e., Parts A and B). Medicare Advantage is administered by private insurance companies similar to other commercial insurance products. As a result, certain insurance company tactics, including prior authorization, are used in cases with patients covered by Medicare Advantage.
Gold card legislation
Gold card legislation is one tool that can be used to curb the overutilization of prior authorization requirements. It allows physicians that have high prior authorization approvals to bypass these requirements for a certain period.
This concept was first introduced in West Virginia, which passed gold card legislation in 2019. The legislation allows physicians with 100 percent prior authorization approval to bypass those requirements on a certain procedure for six months.
Texas passed similar legislation in 2021, allowing physicians with 90 percent approval to bypass prior authorization requirements. Other states that have introduced gold card legislation include New York, Colorado, Indiana, Kentucky, Mississippi, and Oklahoma. More state medical societies—including Ohio—are working on similar legislation.
Currently, Vermont is running statewide gold card pilot programs for both Medicaid and private insurers. According to a 2020 report from the Vermont Department of Health Access, the gold card program provided “a notable example of success in improving clinical results and reducing administrative burden for healthcare professionals” who used it for Medicaid radiology services.
Legislation was introduced at the national level by Reps. Michael Burgess, MD (R-Texas), and Vicente Gonzalez (D-Texas). The Getting Over Lengthy Delays in Care as Required by Doctors (Gold Card) Act of 2022— H.R. 7995—exempts physicians from Medicare Advantage prior authorization requirements so long as 90 percent of their requests were approved in the preceding 12 months. The Gold Card Act also establishes numerous processes to ensure that Medicare Advantage plans cannot inappropriately revoke this exception to prior-authorization practices.
Although rescinding exemptions is permitted under the bill, to do so, Medicare Advantage administrators must demonstrate that less than 90 percent of claims submitted by the physician during a 90-day plan period would not have received prior authorization. This 90-day look-back period must be extended until at least 10 claims are ultimately provided. Services that are initially denied and pending appeal for at least 30 days are required to be considered “approved” with respect to the 90 percent threshold.
The bill also explicitly excludes services affected by a change in coverage determinations that were submitted during the 90-day look-back period. Most importantly, Medicare Advantage plan physicians who review the potential gold card rescission are required to be actively engaged in the practice of medicine in the same or a similar specialty as the physician under review; have knowledge about the specific service in question; and possess a current, nonrestricted license in the same state as the furnishing physician. Physicians who possess the gold card exemption can also appeal any attempt to rescind the exemption.
AAOS’ efforts in federal advocacy continue in promoting the Improving Seniors’ Timely Access to Care Act (H.R. 3173/S. 3018). This bill is different from the Gold Card Act, but similarly seeks to reduce the hassle of prior authorization for patients with Medicare Advantage. The bill would call for an electronic prior authorization process that ensures review by qualified medical personnel. It also minimizes the use of prior authorization in routinely approved services and prohibits it for medically necessary services performed during preapproved surgical procedures. In September, the bill was passed by the House of Representatives and is now being considered by the Senate.
AAOS continues to try to streamline the available mechanisms to reduce roadblocks that interfere with physicians caring for patients. Please support the efforts of your state orthopaedic and medical associations to enact changes in the commercial plans in your state. Orthopaedic unity on this issue will enable the most efficient and effective care of our patients and promote the profession to which we have committed our lives.
Douglas W. Lundy, MD, MBA, FAAOS, is chair of the Department of Orthopaedic Surgery at St. Luke’s University Health Network and chair of the AAOS Advocacy Council.