Unwarranted Delegation to Artificial Intelligence of Prior Authorizations for Select Medicare Treatments

The Centers for Medicare & Medicaid Services (CMS) seeks to leverage the unprecedented capabilities of artificial intelligence (AI) through its newest Innovation Center approach known as the Wasteful and Inappropriate Services Reduction Model (WISeR). WISeR will redefine traditional Medicare claim approval operations through AI-driven prior authorization requirements imposed on beneficiaries seeking certain medical services. WISeR exposes beneficiaries to improper claim denials and delayed or forgone care. However, its greatest flaw is that it cannot be legally classified as a "model" at all. Congress has not defined what constitutes a "model" in establishing the Innovation Center, leaving it to CMS's interpretion. But WISeR contrasts starkly with previous Innovation Center models: It imposes substantial mandatory obligations on Medicare providers yet remains classified as voluntary, avoiding formal notice and comment procedures. WISeR also represents the first model that transfers CMS decision-making processes entirely to private companies. WISeR is not a "model," but an attempt to circumvent formal rulemaking processes regarding Medicare claims through AI-driven coverage decisions. Post-Chevron deference, courts, and not administrative agencies, are empowered to decide what Congress means when its legislative guidance is ambiguous. Consequently, courts should find that WISeR is not a "model" and must undergo a formal rulemaking process.