Preventing Insurance Denials of Applied Behavior Analysis Treatment Based on Misuse of Medically Unlikely Edits (MUEs)

Abstract

Abstract

The importance of obtaining full insurance coverage of all medically necessary applied behavior analysis (ABA) services without artificial limits on scope, intensity, duration, or beneficiaries of treatment is at the core of autism health care advocacy. Although some limitations, such as dollar limits, treatment hour caps, or restrictions on location of services or symptoms treated are obvious, others are more nuanced. One such area meriting increased attention is insurers’ use of Medically Unlikely Edits (MUEs) in ways that can improperly limit care, reduce access, and undermine quality. Unfortunately, behavior analysts may unwittingly act as ambassadors for improper limits by treating MUEs as fixed limits on treatment and conscientiously counseling fellow practitioners to adhere to MUEs as if they cannot lawfully be exceeded. This is not surprising given that a number of payors appear to apply MUEs for ABA in exactly that erroneous fashion. In fact, MUEs arise from a program implemented by the Centers for Medicare and Medicaid Services (CMS) to flag potential fraud and billing errors and are not and never were intended to limit medically necessary ABA. As ABA practitioners seek to preserve and expand funding that allows treatment in accordance with generally accepted standards of care, care must be taken to ensure that practical administrative procedures and billing requirements do not undermine these efforts. Correct utilization of MUEs should be on the agenda of payors, regulators, policymakers, and behavior analysts to safeguard access to ABA, free of improper limits that threaten to lower the standard of care.

In just over 2 decades, applied behavior analysis (ABA) has evolved from being excluded by insurers as educational or investigational to being an accepted health benefit covered by most insurance in the United States for the treatment of autism spectrum disorder (ASD)—a remarkable achievement of exceptional advocacy underpinned by an overwhelming body of scientific evidence (Eldevik et al., 2009; Makrygianni & Reed, 2010; Reichow, 2012; Unumb & Unumb, 2011). ABA’s integration into the U.S. health care system has created unprecedented access to behavior analytic treatment. Firmly ensconced in the landscape of American health care, ABA has also acquired the trappings of other health care benefits, including its own billing codes, known as Current Procedural Terminology (CPT) I codes for adaptive behavior (Centers for Medicare & Medicaid Services [CMS], 2018).

Another common feature of the health care system is the use of Medically Unlikely Edits (MUEs). MUEs were established by the Centers for Medicare and Medicaid SCMS to support accurate billing of services in specified federal health care programs. Although MUEs are not intended to limit medically necessary treatment, their misuse by some payors in processing ABA claims for treatment of autism spectrum disorder (ASD) does exactly that. As providers encounter barriers to reimbursement, they may shape their practices to adhere to this improper use of MUEs, complicating treatment delivery, reducing provider capacity, and likely increasing cost-sharing for patients. Breaking this cycle requires understanding the origin, purpose, and intended operation of MUEs. Once ABA providers understand the proper use of MUEs, effective advocacy has the potential to change or clarify payor policies, increase regulatory oversight, improve treatment and reimbursement, and, ultimately, eliminate improper, costly claims denials and limitations on care.

Issues involving MUEs are diverse and multi-faceted. The discussion here is limited to the practice and reimbursement of medically necessary applied behavior analysis (ABA).1 Entities that use MUEs include insurers, insurance issuers, health plans, Medicare administrative contractors, Medicaid fee-for-service, managed care organizations, and other third-party administrators, collectively referred to herein as payors.

Origins and Purpose of MUEs

The Centers for Medicare and Medicaid Services (CMS) introduced MUEs on January 1, 2007, to reduce billing errors and fraud in Medicare (CMS, 2022a). The Patient Protection and Affordable Care Act (ACA) expanded the use of MUEs to Medicaid, effective October 1, 2010 (United States, 2010). An MUE is the “maximum number of units of service (UOS) under most circumstances reportable by the same provider/supplier for the same beneficiary on the same date of service” (CMS, 2022a, p. 3).2 MUEs were issued for the adaptive behavior current procedural terminology (CPT American Medical Association) codes—the billing codes primarily used for activities related to ABA—in January 2019 (Fisher & Kornack, 2019). See Table 1 for current MUE for CPT codes for adaptive behavior services.

Table 1.

MUE Values for CPT Adaptive Behavior Codes

CPT Code	Practitioner Services MUE Value	MUE Adjudication Indicator	MUE Rationale
97151	8 (Medicare) 32 (Medicaid)	3 3	CMS Workgroup Society Comment
97152	16	3	CMS Workgroup
97153	32	3	Society Comment
97154	18	3	CMS Workgroup
97155	24	3	Society Comment
97156	16	3	CMS Workgroup
97157	16	3	CMS Workgroup
97158	16	3	CMS Workgroup
0362T	16	3	CMS Workgroup
0373T	24 (Medicare) 32 (Medicaid)	3 3	Society Comment Society Comment

Effective January 1, 2023. Adapted from “Practitioner Services MUE Table” by Centers for Medicare & Medicaid Services. Copyright 2023 by the Centers for Medicare & Medicaid Services

CMS administers Medicare, Medicaid, and the Children’s Health Insurance Plan (CHIP), making it the nation’s largest single payor of health care. Of those three programs, Medicare alone accounts for 21% of health-care spending in the United States (Cubanski & Neuman, 2023). Medicare’s outsized role in health-care spending is relevant to ABA providers, even though ABA is a noncovered service under Medicare, because the same payors and systems that adjudicate Medicare claims are adjudicating claims for ABA.

The correct application of MUE to Medicare and Medicaid claims addresses a significant problem by preventing payment of billions of dollars in fraudulent and erroneous claims. Improper payments to Medicaid providers in 2014 were estimated at $17.5 billion (Office of Inspector General, 2016). From 1996 to 2013, MUEs were estimated to have saved Medicare $7.5 billion (Office of Inspector General, 2016). In the context of commercial insurance coverage of ABA, however, where services are routinely required to be preauthorized and subject to rigorous documentation requirements, MUEs too often have the primary effect of limiting coverage, rather than their intended purpose of preventing fraud and billing errors.

Variables in Establishing and Applying MUE Values

National Correct Coding Initiative

The National Correct Coding Initiative (NCCI) is a program under CMS whose purpose is “to promote national correct coding of Medicare Part B claims” (CMS, 2023a) and “reduce improper payments in Medicaid and Children’s Health Insurance Program” (CMS, 2023a). NCCI sets the MUEs for each billing code and states that its methodologies are the product of “. . . coding conventions defined in the American Medical Association's Current Procedural Terminology (CPT) Manual, national and local Medicare policies and edits, coding guidelines developed by national societies, standard medical and surgical practice, and/or current coding practices” (CMS, 2022a, p. 5).

NCCI MUE Rationales and ABA

MUEs are determined in a variety of ways, and NCCI indicates a rationale for each MUE. Setting the MUE for some codes requires only limited analysis when the maximum units of a code billed for one patient in a single day may be inherently limited by the nature of the code. For example, an appendectomy would only be performed one time on a single patient. The MUE rationale for this type of code is indicated as “anatomic consideration” (CMS, 2022a, p. 28). Other rationales include, but are not limited to, CMS NCCI policy; code descriptor/CPT instruction; Medicare data; and nature of service. As noted in Table 1, the rationale cited for the majority of adaptive behavior codes is “CMS Workgroup,” although four codes (i.e., CPT codes 97151, 97153, 97155, 0373T) cite “Society Comment,” reflecting the work of the ABA Services Steering Committee, a group comprised of representatives from the Association for Behavior Analysis International, Association of Professional Behavior Analysts, Autism Speaks, and the Behavior Analyst Certification Board that spearheaded adoption of the permanent CPT codes (CMS, 2022b).

Problematic Use of MUEs in Commercial Coverage of ABA

Although MUEs are only intended for use in Medicare and Medicaid programs, commercial insurers may choose to apply them, and they largely have done so. Although CMS recognizes that commercial insurers may seek to use MUEs in their own coverage systems, it has stressed that care must be taken in doing so, so as not to conflict with the payor’s own contractual and legal coverage obligations (CMS, 2023b). Issues that may arise as a result of the discretionary application of MUEs to commercial insurance or other funding programs include payors erroneously using Medicare rather than Medicaid MUEs, failing to account for preauthorization of ABA services to avoid erroneous denials of claims, and failing to implement an effective claims appeal process that treats MUE as CMS intends. MUEs are not contractual limits on coverage. MUEs adopted by commercial insurers should not in any way diminish the scope of substantive benefit or coverage requirements in payor policies, whether imposed by statute or contract. As set forth in NCCI FAQ Guidance on the use of MUEs in non-Medicare/Medicaid programs, “plans that voluntarily choose to adopt Medicare’s NCCI methodologies should review their edits and consider deactivating individual edits that conflict with their own benefit and coverage determinations” (CMS, 2023b, “Billing and Coding Advice” section).

Medicare contractors implement MUE through the Fiscal Intermediary Shared System, a claims processing system (CMS, 2023a). There is no separate claims adjudication system for ABA claims, so ABA providers typically experience claims denials based on Medicare MUE, regardless of the fact that ABA providers are not contracted with Medicare. This results in Medicare MUEs being used to deny commercial ABA claims and may even result in Medicaid claims being adjudicated with Medicare MUEs.

Applying MUEs to ABA Services

In reviewing adjustments that may be needed when applying MUEs to commercial plans, it should be noted that a number of significant problems may arise in applying NCCI MUEs to commercial insurance coverage of ABA. As a preliminary matter, it is axiomatic, given the highly individualized nature of ABA treatment, that the expected usage profile will vary by individual and in the aggregate depending on the condition being treated and the predominant treatment type (e.g., focused versus comprehensive). Therefore, it can be anticipated that some number of legitimate claims will exceed the MUE. Also, ABA treatment for ASD is not currently covered in the Medicare program. By contrast, ABA for ASD and, in particular, for children and adolescents, is covered in Medicaid. Per NCCI guidance that edits that conflict with coverage should not be used, insurers seeking to use NCCI MUEs for ABA should take this into account (CMS, 2022a). When there is a discrepancy between MUEs for ABA in the Medicare program and the Medicaid program, the payor should follow the Medicaid MUE.

These are not merely theoretical issues. For example, the Medicaid MUE for CPT code 97151 is thirty-two 15-minute units (i.e., 8 hours) per day whereas the MUE for Medicare for this code is limited to eight 15-minute units (i.e., 2 hours) per day. Notwithstanding the obvious impropriety of following the Medicare MUE for this code with respect to ABA services for children with ASD, many payors routinely deny claims when 97151 exceeds Medicare’s 2-hr MUE. One reason for this may be that the payors’ software is preset to follow Medicare MUEs, and adjustments have not been made per NCCI guidance.

Requirement to Pay Claims in Excess of MUEs

MUEs are intended to be solely in furtherance of accurate billing. They are not intended to deny payment of properly coded, medically necessary claims. As NCCI guidance states, “Services that exceed those typically billed should be carefully documented to justify their necessity, but are payable if the individual patient benefits from medically necessary services” (CMS, 2022a, p. 192). To that end, MUEs are assigned adjudication indicators to facilitate proper payment.

MUE Adjudication Indicator 3

Each MUE is assigned an MUE Adjudication Indicator (MAI) of 1, 2, or 3 (CMS NCCI Manual), which provides specific billing guidance to payors. CMS has provided clear guidance that MUE with an MAI of 3 are payable in excess of the MUE if services were (1) actually provided; (2) properly coded; and (3) medically necessary (CMS, 2013). As noted in Table 1, all CPT I codes for adaptive behavior have an MAI of 3. NCCI explicitly states that “MUE values are not utilization guidelines” (CMS, 2023b). In fact, NCCI clarifies that “denials are based on incorrect coding rather than medical necessity” (CMS, 2022a, p. 5; 2023). That distinction is important for two reasons: (1) a denial based on incorrect coding should be reversed when the payor determines the coding was, in fact, correct; and (2) an unpaid balance arising from MUE denials may not be billed to the patient (CMS, 2022a).

When Payor MUE Policies Fail to Comply with CMS Guidance

Unfortunately, payor MUE policies pertaining to ABA too often fail to pass muster in a number of critical respects, including failing to apply the appropriate MUE for the code involved, improperly using MUEs as utilization limits, failing to have an efficient and expeditious process to review and approve appropriate claims denied by the MUE process, and failing to ensure compliance with statutory and contractual coverage obligations. The process for reviewing claims should track general prompt payment requirements applicable to the contract. Following MUE guidance, including guidance pertaining to the adjudication indicator, payors who implement MUEs as intended by CMS should pay ABA claims in excess of the MUE once they have determined that the services captured by the claims have actually been provided and that the claims are properly coded and for medically necessary services. In practice, however, rather than being a check on accurate billing, payor use of MUEs often has the effect of managing utilization and imposing daily limits on medically necessary ABA.

Insufficient Appeals Process

A review of payor MUE policies reveals a pattern of imposing MUE limits on ABA services without providing an effective appeals process when claims are denied. Payor policies often solely describe the daily unit limits and omit information relevant to ensuring payment for correctly coded, medically necessary ABA, including (1) the elements required to pay a claim in excess of the MUE; and (2) the process a provider should follow to ensure units in excess of the MUE are paid.3 Furthermore, the commonplace payor practice of including MUEs in fee schedules appears to treat each MUE as a hard limit, intimating that claims in excess of the MUE are improper and will result in unchallengeable claims denials. See Table 2.

Table 2.

Payor MUE Policies

Payor	MUE Policy	Reference
BCBS North Carolina	Blue Cross Blue Shield North Carolina (Blue Cross NC) will not reimburse claims with units that exceed the assigned maximum for that service. The total number of units will be adjusted to the maximum and the excess units will be denied.	https://www.bluecrossnc.com/sites/default/files/document/attachment/services/public/pdfs/medicalpolicy/maximum_units_of_service_edits.pdf
Blue Cross Blue Shield of Texas	Please refer to the most current release of the Centers for Medicare & Medicaid Services (CMS) Medically Unlikely Edits (MUE) table for guidance on the maximum units of service that a provider would report under most circumstances for a single beneficiary on a single date of service. Service units are also limited by specific authorization period.	https://www.bcbsnm.com/docs/provider/nm/cpcp011.pdf
Florida Blue	If your claim denies due to the number of units reported for a service, you may submit a claim payment appeal. Your appeal must be submitted in writing and accompanied by the necessary documentation to support the number of services provided and for appropriate pricing of the claim.	https://www.floridablue.com/sites/floridablue.com/files/docs/Claim-Submission-Billing-Guidelines-MASTER2-11-28-2022.pdf
Horizon Blue Cross Blue Shield New Jersey	Based on a recent Horizon BCBSNJ system update, claim lines that include a CPT or HCPCS code for which the frequency or number of units exceeds the maximum units of service per NCCI's MUE guidelines will be denied on all claims processed on and after May 9, 2014.	https://www.horizonblue.com/providers/news/news-legal-notices/medically-unlikely-edits
Moda Health	For reconsideration review for higher quantities, a written appeal is required accompanied by medical records. The appeal and records must document units of service excess of the MUE value were: i. Actually provided. ii. Correctly coded. Page 3 of 8 iii. Medically necessary.	https://www.modahealth.com/pdfs/reimburse/RPM056.pdf
Molina	If more units of service are reported on a claim line than the MUE value for the code, the entire claim line would be denied.	https://www.molinahealthcare.com/providers/mi/medicaid/policies/~/media/Molina/PublicWebsite/PDF/Providers/common/Payment_Policies/PI_Coding%20Policy%2015_Medically%20Unlikely%20Edits.pdf
Regence	Our health plan uses the CMS MUEs and associated MAIs for maximum daily unit edits. Submission of units within the CMS unit limit will ensure accurate adjudication and reimbursement of claims.	https://www.regence.com/provider/library/policies-guidelines/reimbursement-policy/maximum-daily-units
UnitedHealthcare	If the summed UOS exceed the MUE value, all lines for the HCPCS/CPT code and DOS for that current claim are denied.	https://www.uhcprovider.com/content/dam/provider/docs/public/policies/medadv-reimbursement/MEDADV-Medically-Unlikely-Edits-Policy.pdf

Standards for Payment of ABA Claims

Based on common aspects of insurance coverage of ABA, the failure to pay claims on appeal is all the more concerning and indicative that MUEs are being used for improper utilization management. In fact, there should be little, if any, dispute that the vast majority of MUE denied claims are properly payable under CMS adjudicator 3 guidance. First, ABA services are routinely required to be preauthorized, so medical necessity for the service being billed will already have been established in that a payor only authorizes services that are medically necessary. Claims that exceed the MUE but do not exceed the preauthorization are payable and do not require additional documentation to support medical necessity. Having determined the services are medically necessary through utilization management procedures at the preauthorization stage, this cannot be revisited at the claims processing stage.4 Second, because services are preauthorized by specific amounts of units per CPT code and because the CPT codes for ABA are limited and distinct, there is reduced likelihood for confusion on proper coding. Finally, because ABA services must be documented in descriptive session notes correlated to delivery dates and times, the process to determine if services were actually delivered should normally be straightforward.

In practice, some payors have implemented the first step of the MUE process to flag and deny claims in excess of the MUE, but they have not implemented the second step of having a process to reverse an MUE denial, as CMS intends and directs when services are (1) actually provided; (2) properly coded; and (3) medically necessary. In effect, payors erroneously treat MUEs as contractually required utilization limits, instead of as merely screening mechanisms for fraud or billing errors. When MUEs are properly implemented to include both screening and review steps, claims flagged for exceeding MUEs should be reviewed and promptly paid when actual contractual requirements (e.g., correct coding) are determined to have been met. If the payor cannot determine contract compliance based on available information at the time of its initial review of screened claims, it can advise the provider of the additional information needed to pay the claims in accordance with contract terms and applicable prompt payment laws. Where services are preauthorized, as is generally the case with ABA, the payor’s review should be more streamlined because the payor has already determined that the services are medically necessary. Payors should have practices in place to discern whether the MUE-flagged claims are for preauthorized hours. Claims for properly coded and delivered services that do not exceed preauthorized hours must be paid in full, regardless of the MUE. Moreover, because of preauthorization and the detailed documentation of service requirements for ABA, as well as the small and distinct set of ABA billing codes that minimizes coding errors, under a properly functioning MUE review system, payment of ABA claims flagged by MUEs would be expected to be the norm, and upheld denials would be the exception.

Potential Harm to Patients If Reforms Are Not Implemented

In addition to the financial harm to ABA providers already operating under slim, barely sustainable margins, which in turn affects network adequacy and access to ABA services generally, the potential harm to patient care from misuse of MUEs is manifest and multifaceted. When payors fail to publicize and implement adequate appeals systems, providers naturally conform their conduct to MUEs that then become de facto utilization limits. In the highly individualized field of ABA treatment for ASD, patient care and access suffer.

Increased Cost-Sharing

As providers endeavor to limit financial losses from MUE denials, patients may experience increased cost-sharing, such as co-pays. Rather than complete the initial assessment over the course of a day or two, a provider operating within the Medicare MUE would limit daily activity of CPT code 97151 to 2 hours. For assessments that can range up to 20 hours or more, this framework would potentially double, triple, or quadruple a patient’s co-pays, as a separate co-pay would be incurred each day that the activity is conducted and billed. Research has demonstrated that higher cost-sharing discourages patients from getting medically necessary care (Council for Autism Service Providers, 2020, p. 21; Young et al., 2022).

Reduced Capacity of ABA Providers to Serve Patients

Even with a functioning appeals process in place, however, artificially low MUEs that deny and delay payments have the effect of limiting provider capacity to serve patients at a time when provider shortages are systemic and demand for ABA continues to increase (Behavior Analyst Certification Board, 2022). NCCI makes it clear that MUEs are not intended to artificially disrupt treatment. (CMS, 2022a). Yet, most providers do not have the financial flexibility to deliver services without predictable reimbursement and, faced with imperfect or nonexistent appeals systems for MUE denials, models for maintaining a sustainable practice would not routinely provide such services. Thus, misuse of MUEs may result in patients not accessing all preauthorized, medically necessary treatment while also increasing patient cost-sharing if providers extend treatment over additional days in an effort to adhere to the MUEs.

Interference with Clinical Decision Making

Routine denials of 97151 and use of Medicare MUEs rather than Medicaid MUEs have the effect of limiting clinicians to perform services for 2 hr per day, across multiple days. An assessment included as part of a “comprehensive treatment program may take 20 hr or longer” (Council for Autism Service Providers, 2020, p. 21), meaning a clinician may find it necessary to conduct the assessment across 10 different days or shorten the assessment, contrary to clinical judgment. Limiting services to 2 hours per day has the potential to unnecessarily disrupt the clinician’s choice, administration, and analysis of assessments, resulting in less efficiency and may cause significant delays to treatment. If the clinician were able to complete an 8-hr assessment in 1 day, clinician time could be more effectively utilized and direct treatment could be initiated sooner.

The clinician’s clinical recommendation for group services via 97154 may also be affected. Many clients, particularly younger children, receive comprehensive treatment of 30–40 hours per week. At first, treatment is delivered in a 1:1 setting and “gradually includes small-group formats as appropriate” (Council for Autism Service Providers, 2020, p. 14). The current MUE for 97154 of 18 units functions to limit clinicians’ recommendations for effectively fading service ratios by limiting the number of units per day to far fewer units than if they were to provide 1:1 services. In essence, the clinician is unable to recommend further fading of treatment to a small group setting as a result of the MUE.

Potential Legal Challenges to Improper Use of MUEs

Although it is beyond the scope of this article to analyze potential legal issues and claims that may result from improper use of MUEs in the ABA context, a few areas are worth mentioning. The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) prohibits treatment limitations that, as written or in operation, are imposed more restrictively on mental health coverage than on medical/surgical coverage. Thus, if insurers apply MUE systems more restrictively on ABA treatment for ASD than on claims for treatment of medical/surgical conditions in ways that limit the scope or duration of treatment, MHPAEA protections may be implicated. Also, to the extent a payor improperly uses MUEs for ABA as utilization limits and/or fails to implement a system for payment of proper claims with adjudication indicator 3, the payor may run afoul of applicable prompt pay laws or be subject to state law contractual or statutory bad-faith claims. Payors must have reasonable systems in place to meet their contractual obligations, including obligations for timely payment of valid claims. These requirements are in no way waived merely because a payor chooses to implement an MUE system.

Advocacy: A Call to Action

The best way to prevent misuse of MUEs is through educating stakeholders. The problem of MUE misuse has all of the elements that call for an effective advocacy campaign: (1) a clearly defined issue; (2) clear regulatory intent and directives; (3) widespread misapplication with serious consequences; and (4) significant potential to resolve the problem. To tackle MUE misuse, advocacy includes increasing awareness of the issue; collecting data to demonstrate the breadth of the problem and the impact of misuse; and seeking regulatory guidance at the state level. Although behavior analysts are exceptionally qualified to collect and analyze data, they may be less familiar with awareness campaigns and interacting with payors and regulators, such as state insurance commissioners.

Advocacy, by definition, endeavors to change the status quo, which may not be welcomed. A thorough and objective understanding of the subject, along with collaboration with peers and trade organizations, is key to maximizing effectiveness of advocacy and minimizing resistance to using MUEs correctly. Often, much can be accomplished by respectful and sincere engagement with payor representatives acting in good faith who may be dealing with a multiplicity of concerns and are themselves acting with imperfect information. Legitimate concerns can often be identified and addressed with mutually acceptable solutions. As ambassadors for a still relatively young and growing profession in the health care field, behavior analysts should maintain professional and polite but firm interactions with payors.

Build a Big Tent

Effective advocacy calls for a variety of opportunities for would-be advocates to get engaged. Whether an advocate is focused on increasing awareness of the issue or advocating for a solution with regulators, a collaborative, transparent approach across stakeholders and geographies is likely to offer the best opportunity for success. Check with state and national organizations (e.g., Association for Behavior Analysis International, Council of Autism Service Providers, National Coalition for Access to Autism Services, state ABA organizations) to expand impact and identify and support others who may be working on the issue or to introduce the issue to colleagues.

Increase Awareness of MUE Misuse

As providers experience MUE claims denials in commercial plans, advocacy is needed to increase awareness of the fact that properly coded ABA claims for preauthorized, medically necessary units should be paid even where they exceed an MUE (CMS, 2023a). Providers should raise concerns with payors who do not have an effective system to pay proper claims in excess of MUEs and should appeal claims denials based on MUE.

Collect Data

Providers who experience claims denials of medically necessary services based on MUEs should collect data to document the scope of the problem, including the MUE used, the payor’s denial codes and language, whether the payor has a written, clear policy on appealing such denials, whether the appeals process actually results in an overturn of the denial, and how long the process takes. These data will be highly useful in convincing regulators to investigate and take further action, either through enforcement actions or education and guidance, such as issuance of department of insurance bulletins which may address the issue systematically. Failure to act has its own systemic implications. NCCI states that MUE values may be “validated or changed based on submitted claims data,” so adhering to an MUE, such as 97151’s 8 units per day, could inadvertently produce data that validates the MUE (CMS, 2022a, p. 29). When the data demonstrate a trend in denials based on MUE, redact personal health information (PHI) from the data and include your findings with your complaint to the regulator.

File a Complaint with State Regulator

For state-regulated claims, providers may file a complaint with the state regulator, seeking the regulator’s assistance to secure payment. Options to file a provider complaint are found on websites of state insurance commissioners. Although each state differs, providers should be prepared to supplement the complaint with a copy of the payor’s authorization and claims denial, the provider’s appeal, and the payor’s determination to uphold the denial.

Regulators consistently analyze complaints to identify patterns that warrant their attention, so the purpose of a complaint may be twofold: (1) to secure payment from the payor; and (2) make the regulator aware of the issue more broadly. Because MUE are borne out of federal, not state requirements, state regulators may be unfamiliar with their purpose or the provider’s right to be paid in excess of the MUE. Include such details in the complaint to facilitate a proper review, including that CMS instructs payors to pay claims in excess of the MUE when the MUE Adjudication Indicator is a 3, as it is for adaptive behavior codes, and that payment should be made in such circumstances where: (1) services were preauthorized as medically necessary and provided; and (2)  the claim is properly coded.

Request Guidance from State Officials

Given that all states have some form of mandated coverage of ASD treatment, including ABA, state regulators have an important role to play when claims for mandated, preauthorized ABA services are improperly denied. Coordinated advocacy to make regulators aware of the issue can help underscore the pervasive nature of the problem, and consistent guidance can promote uniformity of coverage and access across states and payors to prevent disruptions to treatment and families. State regulators should provide guidance to health plans and managed care organizations to clarify that: (1) claims with billing codes that have an MUE Adjudication Indicator of 3, including ABA claims, are payable in excess of the MUE; (2) a payor’s preauthorization of services satisfies adjudication indicator 3’s medical necessity requirement; (3) preauthorized services rendered within the scope of the authorization should be paid; (4) payors that have denied ABA claims for preauthorized ABA services on the basis that they exceed the MUE should work with providers to reprocess those claims promptly, correctly, and efficiently; (5) a payor’s use of MUEs must be consistent with all applicable federal and state laws, including MHPAEA, state mental health parity statutes, and state autism insurance mandates; and (6) payors shall make beneficiaries aware that access to mental health services shall not be limited and cost-sharing shall not be greater based on a plan’s use of MUE.

Disseminate Success Stories

Results of effective advocacy should be broadly disseminated through trade organizations, state associations, and other provider forums. Successful advocacy offers a roadmap for others, and success with one payor or in one state may propel another payor or state to take similar action.

Conclusion

The ongoing misuse of MUEs is merely one aspect of the overall challenge of preserving and expanding access to quality ABA treatment delivered in accordance with generally accepted standards of care. Given the hallmarks of effective ABA treatment—sufficient intensity of treatment, thorough and individualized assessments, individualized treatment planning including use of individual and group treatment, and other variables—it is imperative that an administrative framework such as MUE, which seeks to address fraud and billing errors, be limited to the purpose for which it is intended and not be permitted to devolve into a mechanism limiting access to ABA (Eikeseth et al., 2007; Granpeesheh et al., 2009; Linstead et al., 2017; Virués-Ortega et al., 2013). At a minimum, MUEs should be reasonably set based on the use of ABA for the population served, and any MUE-triggered denials should be accompanied by a functioning review process that pays claims for services that have been preauthorized as medically necessary, properly coded, and actually delivered.

Funding

No funding was received in preparation of this article.

Data Availability

Data sharing is not applicable to this article as no datasets were generated or analyzed.

Declarations

Competing Interests

The authors listed herein do not have competing interests associated with the submission of the article.