Time For More Progress on Knocking Down Roadblocks to Care

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By John Hawkins, president/CEO, Texas Hospital Association
Originally published by the Houston Medical Journal
Sept. 21, 2022

As health care continues to sit at the front of the public consciousness – as it has since the start of the COVID-19 pandemic – patients and providers alike continue to find themselves characters in a story as persistent as it is frustrating.

Generally, it goes something like this: Patients seek needed care. Hospitals and other providers pursue the required steps to deliver that care and get it duly paid for through the patient’s health insurance. But insurer policies result in bureaucratically delayed approval of payment for that care or outright-denied payment – either before the care can be delivered or after the fact.

“Slow payment, low payment, no payment” is the perpetual trifecta that confounds hospitals and creates associated aggravation for patients. The bureaucracy created by onerous payer policies is multi-faceted and can’t be alleviated entirely with one piece of legislation or regulation or one stroke of the governor’s pen.

But as lawmakers prepare to kick off the 88th session of the Texas Legislature in a few months, the Texas Hospital Association and its friends in health care once again are preparing to advocate for making Texas a more healthcare-friendly environment. Finding ways to curb health plans’ impediments to care are an enormously important part of that effort, and THA will look to make new headway in doing so while building on recent successes in that area.

One major continuing issue for Texas hospitals is the drive to enforce the state’s “prudent layperson” standard for emergency care. In both state and federal law, emergency care is defined as health care services to evaluate and stabilize a medical condition that would lead a prudent layperson with an average knowledge of medicine to believe the condition poses a serious threat to their health if they don’t get treatment immediately. In theory, that should prevent health plans from basing their coverage decisions on the patient’s ultimate diagnosis rather than the first impression of a frightening condition that – for all the patient knows – could be life-threatening.

However, some health plans continue to make payments for emergency care conditional on the final diagnosis. Meanwhile, hospitals have no ability to anticipate or account for insurer denials because the Emergency Medical Treatment & Labor Act prohibits hospitals from seeking insurer authorization for screening or stabilization services until after the hospital has begun those services.

THA is committed to making sure insurers cover emergency care in accordance with the prudent layperson standard. During the 2021 session, THA supported bills filed by Rep. Tom Oliverson (R-Cypress) and Sen. John Whitmire (D-Houston) that would have clarified the state’s definition of “emergency care” with the phrase “regardless of the final diagnosis of the conditions,” aligning the law’s definition of the prudent layperson standard with its legal interpretation. Neither bill passed, but shoring up the prudent-layperson standard in state law will again be a priority for THA in the 2023 session.

THA will also strive to curb the insurer’s practice of “white-bagging” medications. That occurs when health plans require clinician-administered drugs to be purchased from non-hospital specialty pharmacies, excluding hospital pharmacies from the insurer’s network. Rep. Eddie Lucio III (D-Brownsville) authored a THA-backed bill to stop white-bagging, which made it through the House of Representatives but died in the Senate. However, in a related victory, the legislature did pass a THA-backed bill by Representative Oliverson to stop insurers and pharmacy benefit managers from prohibiting pharmacies from dispensing medications they’re licensed to dispense, helping to ensure hospital pharmacies can do so.

The delays and denials caused by prior authorization, too, are a continuing source of pain for hospitals and other providers – but during the 2021 session, health care advocates succeeded in a major step. A bill by Rep. Greg Bonnen (R-Friendswood) targeting prior authorization became law. It allows providers to earn a “gold card” exemption by getting approval on 90% of their preauthorizations over a six-month period. THA, which supported the bill along with the Texas Medical Association, will monitor both the new law to make sure it works as intended and any legislative action this winter that might strive to undercut its purpose.

These issues and others in the insurance realm – such as the general effort to ensure health plans offer adequate coverage – will be among THA’s foremost focuses. Across the nation and in Texas – especially in light of COVID-19 and other recent threats such as monkeypox – the importance of access to high-quality health care never stops growing. That means the importance of high-quality health coverage – and prompt insurer pay without undue delays – never stops growing. Optimizing the relationship between care and coverage is an obligation we should all have at the front of our minds as lawmakers begin their biennial effort to strengthen Texas.