How to Fix Prior Authorization: Open Insurance Companies to Malpractice Suits

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Despite the passage of two federal mental health parity laws, the Mental Health Parity Act in 1996 under Bill Clinton and the Mental Health Parity and Addictions Equity Act in 2008 under George W. Bush, and despite a major 60 Minutes piece devoted to this issue in 2014, there remains little effective parity between psychiatry and the rest of medicine.

Unlike “medical” hospitalizations, all hospitalizations in psychiatry must go through an emergency room, or “emergency-room equivalent” (an acute care walk-in clinic with admitting privileges to an approved hospital), and must be “pre-approved” by insurance companies. This is a long-standing dictate from Big Insura, and the government has never dared put any teeth behind its parity laws. In practical terms this means a random representative of The Company, typically a nurse, typically somewhere in the Deep South, makes a decision at her whim — with powerful financial incentive to repeatedly declare, “NO!” — whether to approve of a hospitalization, or not, based on a case made, over the telephone, by those who have actually evaluated the patient.

(Imagine calling a “time-out” in the ED in order to make a series of phone calls in order to obtain insurance pre-authorization before transfer to the cath lab. And more, imagine the “cardiology piece” of your insurance has been "carved out," in tiny print, to a different, even more cut-rate insurance company, with its own very limited contracts and very limited network for “cardiology-related issues,” likely a very different network than the rest of your insurance. A very common cost-cutting practice with regard to the “behavioral piece” of your insurance, not usually discovered until it’s too late.)

For those unfamiliar with psychiatric hospitalizations, these are generally considered to be the equivalent of intensive care units for the mentally ill. And it is well to keep in mind that safety standards are very different for psychiatry. Consider that patients with medical illness, despite heroic efforts, at times do die. And this is expected. But when a patient dies of psychiatric illness there are all manner of investigations, not least of which are often investigative reports by the media.

This is part of the backdrop of our efforts in crisis situations.

If a hospitalization, i.e. an intensive care stay, is not approved by Insura, the hospital will be reimbursed nothing if the patient is admitted. In fact, they will effectively lose money as they are losing a bed that could go to a paying customer (in addition to the money lost by occupying a bed in the emergency room for hours, sometimes days, sometimes weeks).

By way of illustration here is a recent example in which we were trying to hospitalize a thirteen year old who had presented morbidly depressed, suicidal, with a plan, and having written a suicide note. And this is not atypical:

Several rings…

…multiple transfers…

…forty-five minutes on hold…

…three dropped connections, then –

Them: “For pre-auth? A representative will call you back within the next two hours.”

…We wait. The corporate strategy here is obvious…

But if we persist — with the emergency room starting to breathe down our necks — we resume the conversation hours later:

Us: “The kid is suicidal with a plan to overdose.”

Them: “Suicidal?”

Us: “Yes.”

Them: “Like, he wants to kill himself?”

Us: “Yes.”

Them: “Like, with a plan?”

Us: “Yes.”

Them: “Does he have a history of pulmonary disease?”

Us: “He has asthma.”

Them: “Does he have a family history of arthritis?”

Us: “Not that I’m aware of.”

Them: “Find that out and call us right back?”

Click…

…another two hours later:

Us: “His maternal aunt has osteoarthritis.”

Them: “Is there a history of eating disorder in the family?”

Us: “Maternal half-sister, paternal uncle, older sister –”

Them: “I’m sorry. Our system just went down. Please call back tomorrow –”

Click…

…next morning:

Them: “Restrictive, purging, restrictive-purging, or binge-purging?”

Us: “Half-sister binging only; uncle restrictive; older sister binge-purging.”

Them: “Can you read me the ICD codes on those, please?”

Believe me, this is no exaggeration. Much like any other “customer service” branch the process is designed to frustrate the customer, in this case a hospital trying to provide life-saving care to a very sick individual, into giving up.

If one is patient enough, however, and keeps the muttering to under one’s breath, and by the grace of Insura the clinically recommended treatment by the experts who have actually evaluated the patient is approved, then the conversation goes something like this:

Them: “We’ll give you one day.”

Us: “But this kid wrote a suicide note. He has a detailed plan and the means to do it.”

Them: “One day. Call back after that for further authorization.”

Click.

If they had just flat out denied the authorization at least there would have been an appeals process, something euphemistically called a “doc-to-doc,” in which I, as “the doctor” could request to speak directly to “their doctor” and plead the case to hospitalize this kid. Of course, “their doctor” is also financially incentivized to “just say no,” but there is a greater chance of playing the remnants of the professional heartstrings of a Company physician than other Company representatives, and “their doctor” then has the final word. However, the “one-day auth” bypasses this workaround.

Setting the ED boarding problem aside, one may now reasonably ask: Just what is a hospital supposed to do in one day? There is no evidence base for one-day treatment for the suicidal. All a hospital can do is contain someone in a safe place, and maybe jack up some potent medications in hopes of “quick stabilization” (i.e. sedation). (Insurances are more than happy to pay for quick pharmacologic interventions, provided these are on their "non-prior auth lists"; hence the supposed "mental health crisis" as defined by number and strength of prescriptions.)

The hospital, however, will be liable — not the insurance company — if the patient is not admitted and then goes out and does something egregious.

The solution?

Open up insurance companies, who are effectively making clinical decisions, who are effectively dictating clinical care, to malpractice suits.

Elliott Martin, MD, is a board-certified adult and child psychiatrist at Newton-Wellesley Hospital, as well as the Director of Consultation and Emergency Psychiatric Services at Newton-Wellesley Hospital, and Assistant Clinical Professor of Psychiatry at Tufts University School of Medicine. He is a 2018–19 Doximity Author.

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