Medicare Advantage prior authorization bill is stuck in Congress

A popular bipartisan bill to curb the use of prior authorization in Medicare Advantage has everything it needs to pass Congress this year, except that it probably won't, and lawmakers who would like to move it are not sure it ever will.

Enthusiastic senators and representatives rolled out the Improving Seniors’ Timely Access to Care Act of 2024 last summer, promising to increase transparency in Medicare Advantage prior authorization requests and mandate speedier responses.

Related: Biden’s prior authorization reforms divide providers, insurers

In the House, the bill debuted with 129 sponsors, and quickly attracted 228, which is more than enough for a bill to pass. In the Senate, the companion measure won 59 backers — more than enough to pass and just one shy of the number needed to defeat a filibuster.

"If you speak to doctors, if you speak to patients, it is clear that prior auth is now being abused," said Sen. Dr. Bill Cassidy (R-La.), the ranking Republican on the Health, Education, Labor and Pensions Committee and a senior member of the Finance Committee, which has jurisdiction over Medicare Advantage.

"A doctor just told me he had to fill out four pages to get somebody a medicine that cost $30," Cassidy said. "So this is absurd."

Yet no one in Congress last week could say the measure will pass in the closing weeks of the 118th Congress, when lawmakers must determine the fate of a number of expiring healthcare programs, regardless of their own hopes.

"We're going into lame duck. If we can get it done, that's what I'd like to see," said Rep. Mike Kelly (R-Pa.), the bill's lead House sponsor and member of the Ways and Means Committee's Subcommittee on Health. "But what I'd to see has nothing to do with what will happen."

Similarly, Sen. Mike Crapo (R-Idaho), the ranking Republican on the Senate Finance Committee, said he supports the bill, but couldn't make any predictions.

Part of the problem is that whenever Congress has programs that must pass, there are often members who would like to hitch their own bills to those vehicles. This year, Congress must figure out how to stave off Medicaid disproportionate share cuts for safety net hospitals, extend funding for community health centers, extend authority for telehealth services and decide whether to restore money cut from physician pay in Medicare, among other items.

Prior authorization is only one of the higher-profile health issues lawmakers would like to address. Others include increasing transparency in healthcare and reining in PBMs. Some priorities including those have passed committees or even the full House, as in the case of the Lower Costs, More Transparency Act of 2023.

It leaves the prior authorization bill struggling in something of a legislative mosh pit.

"All I can tell you is, in general, we are working on a number of health care issues. I can't tell you for sure that that one's in or not," Crapo said. "I just don't know. And I don't know whether any of them [the other bills] will go, either."

Since most of the lingering health bills that extend programs involve spending money, they are likely candidates to be included in the year-end funding bill that also must pass by Dec. 20.

Key lawmakers still haven't decided which of those health measures will go along with the end-of-year package, let alone any of the popular side bills.

"I think there's not an answer to that yet," said Senate Appropriations Committee Chair Patty Murray (D-Wash.).

A bill with Republican lead sponsors and broad bipartisan support could be a likely prospect for a new Republican majority to advance and declare an early win.

Everett Wilson, a healthcare lawyer and consultant with law firm Polsinelli, said there are conditions changing in the Medicare Advantage space that make the issue less important for Congress to address, and lawmakers and the Centers for Medicare and Medicaid Services may need to focus on broader issues instead.

For instance, the prior authorization bill largely formalizes a rule CMS has already imposed, which will require insurers to adopt electronic systems and render prior authorization decisions within 72 hours for urgent care and non-urgent requests within seven days, starting in 2026.

"What that legislation does is really codify an existing rule that really hasn't even gone into effect yet, so I don't know if there's any real rush, per se, to get that in," Wilson said.

Also, insurers that have been sued over their prior authorization practices have already begun dialing back in some cases, and they did not come out against the Timely Access bill. The Better Medicare Alliance, founded by insurers, supported the measure.

The reason insurers and their advocates have backed off is both the bill and the decline in prior authorization use by insurers are largely stop-gap reactions that don't address underlying issues such as shrinking premiums, growing costs and demands to satisfy private equity and other investors, Wilson said.

While prior authorization is meant to be a curb on fraud and overuse of services, it is also a short-term cost control and insurers have other means to achieve the same end, he said.

"There's still workarounds," Wilson said. "I see workarounds all the time that have nothing at all to do with prior authorizations."

Some include narrowing provider networks, canceling contracts with busier providers in favor of those with fewer patients, and instituting pre-payment reviews for doctors.

"There's other things that health plans can do under the auspices of fraud and abuse, or just cost containment or utilization management or whatnot, that kind of effectively get you to the same place," Wilson said.

And those in turn could spur more reactive legislation from Congress as constituents continue struggling to access care, he said, noting that lawmakers have not really focused on the broader pressures squeezing Medicare Advantage insurers that have prompted the cost-cutting efforts.

Lawmakers have begun seeking information on reforming payment systems in Medicare, particularly for doctors, but Medicare Advantage and prior authorization have not figured prominently in those talks.

Whether laws come out of that work is much less predictable than prospects for a small-bore bill on prior authorization, which could pass next year if legislators such as Cassidy and the Timely Access to Care Act's lead Senate sponsor, Sen. Dr. Roger Marshall (R-Kan.) get their way.

"I think that there's going to be a real interest in this, and maybe the states take the lead, but I'd like to think that Roger and I will pass it, if not this Congress next Congress," Cassidy said.