Dr. Kaplan, in an attempt to explore the potential pitfalls of implementation, even visited an emergency department which had been touted as a leader in AUC implementation at a national radiology meeting to see what they were doing. What he found was much more problematic than was advertised, especially in terms of ease of use. The emergency physician pioneers at that hospital had discovered many problems with implementation and were willing to share what they had learned, hopefully to help all emergency physicians as this process is regulated forward.

Given that the revised physician fee schedule language (see sidebar) doesn’t carry the full weight of codified regulatory language, this exemption is more likely to be helpful on appeal if payment is denied. According to clinical informaticist and EMTALA expert Todd B. Taylor, MD, “The EMTALA definition of EMC is a relatively high bar, often only determined retrospectively, and a substantial number of ED patients fail to meet this definition. In other words, by the time you know a patient has an EMC, most tests will have long been ordered. So, from a practical standpoint, emergency physicians may need to comply with this requirement, except perhaps for Level I trauma, cardiac arrest, and other critical situations.”

When Will AUC Be Required?

Start-up was originally scheduled for Jan. 1, 2017. Since the regulation affects physicians, the annual physician fee schedule was the vehicle chosen by CMS for AUC’s implementing rules. The 2017 final rule pushed the start date back a year to Jan. 1, 2018. Given the continuing problems with integrating AUC into hospital electronic health records, many physician groups, including ACEP and the American Medical Association, are advocating additional delays.

If CMS agrees, any change to the startup date would be included in the 2018 physician fee schedule, which will be finalized by Nov. 1, 2017. Barring some sort of intervention by Congress or a hold authorized by the president, every physician will have to comply eventually.

Who Designs Appropriate Use Criteria?

Another provision in the regulation (42 CFR 414.94) describes a “provider-led entity” (PLE) which is “a national professional medical specialty society or other organization that is comprised primarily of providers or practitioners who…predominantly provide direct patient care. Once a PLE is qualified by CMS, the AUC that are developed or endorsed by the entity would be considered to be applicable AUC.”

Once certified, these entities (The American College of Radiology and Brigham and Women’s Physician group are two of 11 currently certified) develop evidenced-based criteria which can then be used for Medicare billing and payment purposes.