CMS Finalizes Delay, Appears Ready to Implement Appropriate Use Criteria in 2023
On November 2, 2021 the Centers for Medicare and Medicaid Services (CMS) released the 2022 Medicare Physician Fee Schedule (PFS) Final Rule. The final rule delays, for the fourth time, the “payment penalty phase” of the Appropriate Use Criteria (AUC) policy until January 1, 2023 or the first January after the Public Health Emergency (PHE) ends, whichever comes later.
As a reminder, we are currently in the educational and operational testing phase of the AUC program. AUC information may be appended to a Medicare claim, but it is not necessary for payment. However, when the payment penalty phase begins, advanced imaging claims subject to the AUC policy must have the proper AUC information included for Medicare to reimburse those claims.
When the third delay of the AUC program was announced in 2020, many in the imaging community began to question if the AUC program was ever actually going to be fully implemented. At that time, the claims-processing challenges seemed insurmountable, CMS had to shift their regulatory focus to the PHE and there was no clear path forward for AUC. Therefore, in early 2021, AHRA pressed CMS to publicly list the lingering implementation issues, so that the imaging community could help CMS identify solutions.
To their credit, CMS listened to AHRA’s call for more transparency regarding the status of the AUC program. In the 2022 PFS proposed rule, CMS responded by listing the nine “challenging” claims-processing issues that needed solutions before moving the program to the next phase. After identifying these problems in the proposed rule and soliciting feedback from the imaging community through the formal comment process, CMS was able to address all of these claims-processing issues in the final rule.
One of the biggest lingering challenges with the next phase of AUC implementation was the fact that there was no process to allow for multiple ordering professional NPI numbers to be on the same electronic CMS-1500 claim form. In the proposed rule, CMS said that in these scenarios, practitioners would have no choice but to split claims if there was more than one ordering professional. However, after reviewing feedback from the imaging community on potential solutions, CMS was able to identify a mechanism for a single advanced imaging claim to contain NPIs from multiple ordering professionals.
CMS adopted many of AHRA’s recommendations including AHRA’s suggestion that advanced imaging claims with improper AUC information be returned for correction instead of being denied. CMS also adopted AHRA’s suggestion to retire, instead of re-define, modifier MH which will help avoid confusion in the payment penalty phase. Together, these policy solutions provide an excellent illustration of how stakeholder comments can impact and improve the final policy.
The nine claims-processing issues are covered in greater detail below. In general, they involve identifying which claims are subject to, and which claims are not subject to, AUC. Not only did CMS make significant progress on claims-processing issues, but they also provided some very important clarifications of scope of the AUC program.
Prior to this final rule, AHRA was concerned that ordering professionals could exert pressure on the furnishing professionals to consult AUC on behalf of the ordering professional. AHRA commented that such a policy would have defeated the purpose of the program and put the onus of AUC consultation on furnishing professionals instead of on ordering professionals as intended by Congress.
Thankfully, in the final rule, CMS makes it clear that “furnishing professionals may not consult AUC on behalf of or in place of the ordering professional” which will prevent ordering professionals from assigning the responsibility of consulting AUC to furnishing professionals.
CMS also clarifies that when the furnishing professional needs to modify an order consistent with the policy enumerated in Chapter 15 of the Medicare Benefit Policy Manual, and is unable to reach the ordering professional, the furnishing professional may proceed with the modified order and append the information from the original AUC consultation. However, if the furnishing professional is able to contact the ordering professional, the ordering professional would need to consult AUC regarding the new order and provide that information for inclusion on the modified claim.
There is no denying that the uncertainty surrounding the Appropriate Use Criteria Program has been a major challenge for the medical imaging community. The delays have made planning and preparing for the next phase of AUC difficult. While it is impossible to guarantee that the timeline won’t slip again (in fact, it will automatically be pushed back if the PHE continues into 2023), CMS does appear ready to operationalize the “payment penalty phase” of AUC.
As always, AHRA’s regulatory affairs committee will monitor all AUC policy developments and update the AHRA membership as necessary.
For those interested in more detailed information regarding the AUC updates included in the 2022 PFS final rule, a longer summary is included HERE, along with the summary statement above.