The Massachusetts Medical Society (MMS) appreciates the opportunity to
comment on these proposed regulations. We commend the work of the Health Policy
Commission (HPC) to develop this system for appealing denials of referrals and
services within ACOs. MMS has long held policy to promote adequate and fair
appeals processes for matters such as inadequate networks. We
hold that the process delineated in these regulations would better serve
Massachusetts patients if several changes were made. We have developed those
suggested changes with particular attention to vulnerable patient populations,
particularly as more than one million Medicaid beneficiaries in the
Commonwealth have recently transitioned into newly formed ACOs. MMS policy
states that “The goal of an Accountable Care Organization (ACO) is to increase
access to care, improve the quality of care and ensure the efficient delivery
of care. Within an ACO, a physician’s primary ethical and professional
obligation is the well-being and safety of the patient.” Accordingly, “physicians must be free to refer out of the network if it is in the
patient’s best interest.”
We commend the decision to set the standard for successful appeals at
whether or not a given intervention or referral would be of clinical benefit to
the patient. We wish to emphasize that the accurate implementation of such a
standard for successful appeals requires that the reviewer of the claim have clinical
expertise to accurately and reliably assess whether or not a given intervention
would be of clinical benefit to a patient. The regulations currently state that
an internal reviewer ought to be “an individual…who has a clinical background
with an active license to practice.” That definition could allow persons such
as social workers or radiology technicians, for example, to serve as internal
reviewers. We therefore urge the HPC to modify that language to read, “a
physician…with clinical expertise and an active license to practice.” Likewise,
the definition of an External Review Agency should be modified to include that
at least one physician with clinical expertise be part of the agency reviewing
claims. We also wish to note that, since the internal reviewer has the
responsibility of determining whether or not a patient has an Urgent Medical
Need, the reviewer ought to be a physician with clinical expertise.
We would also urge the HPC to add physicians to the list of persons able
to initiate appeals, so that physicians may appeal and may initiate external
review on behalf of their patients. The regulations state that patients and
authorized representatives may initiate appeals and external reviews;
physicians with clinical expertise ought to be added to that list (Internal
appeals--11.05: Form and Manner of Request; External review—11.14: Form and
Manner of Request). This is in keeping with long-held MMS policy that physicians
ought to be able to initiate appeals: “Adequate and timely appellate
mechanisms for both patients and physicians should be in place to address
disputes regarding medically necessary care. In some circumstances, physicians
have an obligation to initiate appeals on behalf of their patients.”
We also have concerns with the provisions of these regulations that
address the materials that ACOs are required to provide to patients (11.04:
Information on Internal Appeals). As stated above, we are concerned with protecting
vulnerable patient populations, and it is particularly vital that patients with
lower health literacy be adequately informed of their right to appeal. We
therefore suggest that the requirements on ACOs to provide notice of this
process to patients be strengthened in ways that thoughtfully strike a balance
between increasing notice to patients and not unduly burdening ACOs.
We also urge amendment of the provision that expedited internal review
be completed within three calendar days. Patients whose claims receive
expedited internal review have an Urgent Medical Need, the definition of which
includes patients receiving emergency services and patients at the end of life.
For some patients, a three-day appeal process may be appropriate; however, for the
most acutely ill, an even more expedited process may be warranted, as three
days may cause a significant difference in prognosis. Crafting policies to
minimize delays in administrative processes such as appeals can help mitigate
associated harms and can reduce unnecessary costs to health systems.
We are also concerned with the timeline for requests deemed ineligible
for external review (11.16: Requests Ineligible for External
Review—Notification). If a claim is submitted within the window of eligibility
and is deemed ineligible, and the notification of eligibility arrives after the
window of eligibility has closed, patients will lose their right to an appeal
because of a technicality. We therefore suggest that the timeline for
submitting a request for external review be reset following a notification of
ineligibility.
The MMS remains encouraged by the promise of care delivered through
ACOs, but believes that appropriate appeals processes are critical to assuring
optimal patient care within those systems.
