No Comment?  Think Again.

On July 13, 2023 the Centers for Medicare and Medicaid Services (CMS) proposed rescinding the Appropriate Use Criteria (AUC) rules and policy as part of the Medicare 2024 Physician Fee Schedule (MPFS) proposed rule.  This is a big deal.  It is also evidence of the importance of comments and questions in response to proposed rulemaking.  The directive to establish appropriate use criteria for advanced diagnostic imaging services was included in the 2014 Protecting Access to Medicare Act (PAMA) and the next decade spent attempting to finalize implementation.

In the 2024 proposed rule, CMS states “we have exhausted all reasonable options for fully operationalizing the AUC program consistent with the statutory provisions…As a result we propose to pause implementation of the AUC program for reevaluation and rescind the current AUC program regulations from § 414.94. We expect this to be a hard pause to facilitate thorough program reevaluation and, as such, we are not proposing a time frame within which implementation efforts may recommence.”  CMS is not authorized to refuse implementation of the rule, which is part of the Protecting Access to Medicare Act (PAMA) but also did not propose a timeframe to resume implementation efforts.

The final straw?  A key requirement called for real-time processing of AUC requests and after years of adjusting edits and dealing with increasing complexity, Medicare’s legacy claims processing system was pronounced unable to handle the intricate chain of interactions. 

Does this mean we can discard all of our work to date as we prepared to comply?   Not necessarily, since the American College of Radiology (ACR) issued a statement noting the real-time processing requirement represented an “insurmountable barrier for CMS to fully operationalize the AUC program…The College is working with Congress to streamline and modernize the PAMA AUC program, including the removal of this requirement, to allow the program to move forward…”[1] 

Operational complexity

While real-time processing may have thrown the wrench into the machinery at this point, removing this requirement (as proposed by the ACR) does not solve the myriad of other operational problems.  The 2024 Proposed 2,033-page MPFS is a daunting read but the 17 pages dedicated to AUC offer an instructive history not only of where we’ve been but outlining issues that have arisen, many of which have not been dealt with.

One of the first issues has to do with fairness.  The proposed rule explains, “Under the AUC program, clinicians and facilities that furnish the imaging service are responsible for reporting information about the ordering clinician’s AUC consultation on the imaging service claim. The furnishing clinician and facility are not paid if the ordering clinician fails to consult and/or if the consultation information is not correctly included on the imaging service claim.” 

This means the referring physician must document the following when ordering designated advanced imaging procedures:

  1. Ordering physician’s National Provider Identifier (NPI)
  2. The qualified Clinical Decision Support Mechanism (CDSM) consulted
  3. Whether the service ordered adheres (or not) to the AUC consulted
  4. If there were no AUC available for the study ordered via the qualified CDSM

A stated program goal deals with identifying outlier ordering physicians but at this point, there is no evident negative impact for failure to adhere to the requirements.  Presumably the threat of eventually being identified as an outlier and facing increased prior authorization measures in that event are considered sufficient motivation to comply.  Again, denials resulting from the failure to include all required information result in financial penalties for the providers of imaging services.

CMS further states, “Beyond the potential for inappropriate claims denials as discussed above, by manually appending information to their claims as supplied by ordering professionals, furnishing professionals are attesting to the credibility and accuracy of that information and may find themselves subject to audits or post-pay review. Considering that the AUC program ultimately involved the identification of outlier ordering professionals and imposing a prior authorization procedure for them as prescribed in sections 1834(q)(5) and (6) of the Act, reliance on manual reporting by one party of information supplied by another party presents a serious risk to data accuracy and integrity.”    

Another risk involves claims for procedures that do not need to comply with AUC requirements, which would be identified by application of a special code by the furnishing provider.  CMS expressed concern not only that another administrative requirement is placed on the providers furnishing the imaging services, but also these exams could be incorrectly denied due to limitations of the current Medicare claims processing system.

The 2024 proposed rule notes there have been ongoing revisions as part of the rulemaking process for 2018, 2019 and 2020 in response to “comments from interested parties.”  As a result, the educational and operations testing period has been extended multiple times and is still in effect.  CMS has been unable to forecast when the penalty phase could be implemented. 

Comments, please

There is a 60-day comment period after publication of proposed rulemaking.  The RBMA is one of the professional organizations responding on behalf of radiology and their comments reflect concerns about key issues in the proposed legislation.  We have the benefit of an active Federal Affairs Committee to draft comments with the input of RBMA members and organizations.    

I am among the many who always assumed those comments were sufficient but a review regarding details of the AUC pause indicate it would probably be valuable to describe specific operational issues that are more in the weeds and generally not included in a top-level review of issues.  These are the details your billing and IT staff members would readily identify and could be either provided to RBMA leadership or submitted separately. 

Do the words of one person make a difference?  In the proposed rule’s lengthy discussion of practice expense calculations, there was a section regarding clinical labor pricing and modifications over past years, including the following:          

“For CY 2023, we received information from one interested party regarding the pricing of the Histotechnologist (L037B) clinical labor type. The interested party provided data from the 2019 Wage Survey of Medical Laboratories which supported an increase in the per-minute rate from the $0.55 finalized in the CY 2022 PFS final rule to $0.64….Based on the wage data provided by the commenter, we proposed this $0.64 rate for the L037B clinical labor type for CY 2023; we also proposed a slight increase in the pricing for the LabTech/Histotechnologist (L035A) clinical labor type from $0.55 to $0.60 as it is a blend of the wage rate for the Lab Technician (L033A) and Histotechnologist clinical labor types.” 

One person (with documentation) was able to influence policy and each  year we scrap for every cent we can as the conversion factor slides and seldom increases.  This individual effort goes into the win column.

No comment?

Who has time to read a couple thousand pages?  Probably none of us, but the information is well-organized for skimming.  In addition, there is a helpful list of contact people to answer questions on specific topics and an executive summary identifies areas addressed by the proposed rule so it is possible to identify areas in which you have expertise and/or which would be of importance to your practice. 

As individual practices and RBMA members, we are silent at our own peril.  We are fortunate to have leadership that provides comments for us, but if we don’t also provide feedback to our leaders, we are left to deal with the results. Grumbling once the rule is in effect can’t make a difference.   

Please note:  The comment period for the 2024 Medicare Physician Fee Schedule ended September 11, 2023.  Keep an eye out for further legislative activity so your individual voice (or that of your practice) can be heard. 

From the MPFS Final Rule:
Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging Program

CMS is finalizing the proposal to pause efforts to implement the Appropriate Use Criteria (AUC) program. CMS is rescinding the current AUC program regulations at 42 CFR 414.94. CMS will continue efforts to identify a workable implementation approach, and any such approach would be proposed through subsequent rulemaking.[2]

Patricia Kroken, MSN Healthcare Solutions Director of Education and Corporate Communications


Prior to joining MSN Healthcare Solutions as Director of Education and Corporate Communications, Pat Kroken had nearly 30 years of experience in radiology management as both a practice manager and consultant to radiology groups, billing companies, software vendors and hospital radiology departments.

Pat has had more than 200 articles published, is a regular contributor to the Radiology Business Management Association (RBMA) Bulletin and a frequent speaker on practice management topics. She served two terms as President of the RBMA, is Editorial Advisor for the national RBMA publication, The Bulletin, and represented the “business side of radiology” as RBMA Liaison to the Radiological Society of North America (RSNA) Associated Sciences Consortium for 7 years. 

Share this post:

Related Posts
Choices in Radiology Practice Management


Managing a radiology practice isn’t a job for the faint of heart but you get to choose your response to daily challenges, large and small. An ethical foundation with a focus on financial viability can lead to success, longevity and job satisfaction.

Read More
radiologists in hospital setting having discussion over images

Radiology and the Hospital Stipend

Hospital-based radiology groups face a crisis on several levels, from maintaining adequate staffing to managing crushing workloads. Learn how forging a partnership with their hospitals has helped.

Read More

MSN Services Inquiry

If you would like to learn more about MSN services for your practice, please call us or use the form below.

1-866-567-7405  / Local: 706-653-8150

Interested Services:

MSN Email Sign Up

Proactive communication and education are essential to running efficient and profitable practices.

Sign up below to receive regular industry news!