6 Legislative and Regulatory Changes Affecting the Ambulatory Surgery Center Industry

Here are six legislative and regulatory changes affecting surgery centers in various states as well as nationwide.

1. Legislation to cover all colorectal cancer screenings for Medicare beneficiaries. The Ambulatory Surgery Center Association is supporting a new bill that could ensure all colorectal cancer screenings for Medicare beneficiaries are covered. This legislation could benefit ASCs by increasing case volume for GI-driven centers. "Colonoscopies save lives — with recent studies indicating they reduce colorectal cancer by mortality by as much as 53 percent," said ASCA Executive Director William Prentice. "ASCs serve as a vital provider of these life-saving screenings."

The Removing Barriers to Colorectal Cancer Screening Act of 2012, introduced by Rep. Charlie Dent (R-Pa.), calls for the waiver of the co-payment for screening colonoscopy regardless of whether a polyp or lesion is found. Under the federal healthcare reform law, Medicare waives coinsurance and deductible for colonoscopies unless a polyp is found and removed, which reclassifies the screening as a therapeutic procedure and requires a co-payment. Because there is no way to know whether a polyp will be found prior to the screening, the uncertainty around whether a co-payment will be necessary can dissuade patients from undergoing screening.

2. Amendment to Iowa spending bill allowing ophthalmologist to operate ASC. Special legislation approved by the Iowa House is expected to be axed by the state Senate because of a lack of support. The legislation would have allowed ophthalmologist Lee Birchansky, MD, ABES, to operate a surgery center in Ceder Rapids. Dr. Birchansky has been seeking a certificate of need to own and operate a surgery center since 1996. He has had CON applications denied four times between 1996 and 2008. He challenged the denials, and even saw one of his cases proceed to the state Supreme Court, but he lost that challenge as well.

Iowa House Republican lawmakers recently added the amendment that would solely provide Dr. Birchansky an exception to the CON process and allow him to perform ophthalmology procedures in surgical suites adjacent to his ophthalmology practice. The Iowa Hospital Association recently called for the amendment to be "sacked."

3. Massachusetts determination of need guidelines.
The Massachusetts Department of Public Health and the Public Health Counsel codified a series of Determination of Need guidelines for ambulatory surgery centers in the commonwealth earlier this month, effectively prohibiting the expansion of ambulatory surgery centers. According to the Linda Rahm, president of the Massachusetts Association of Ambulatory Surgery Centers, the decision will force Massachusetts residents to seek care at more expensive hospital-based facilities as ASCs struggle to survive.

"As president of the [MAASC], I am extremely disappointed that the DPH and the Public Health Counsel continue to perpetuate an uneven playing field between independent and hospital-owned outpatient facilities at the expense of cost containment and choice for Massachusetts residents," Ms. Rahm said. She said in preparing for healthcare payment reform, the Legislature has the opportunity to examine the "inequities reinforced by these regulations." The Massachusetts Hospital Association has countered these criticisms by saying the Department of Public Health is correct in halting "uncontrolled growth" of ASCs.

4. Data reporting requirements for ASCs through CMS. The Centers for Medicare & Medicaid Services is rolling out changes for ambulatory surgery centers, with the release of its ASC quality reporting manual. The manual provides detailed information on how ASCs should reform quality information to CMS.

Of note, the manual indicates that ASCs that used a safe surgery checklist based on accepted standards of practice at any time during 2012 can answer "yes" when they report whether they used a safe surgery checklist during the year. Previously, CMS had indicated that ASCs would be able to answer "yes" only if they had implemented a safe surgery checklist by Jan. 1, 2012. The change would allow more ASCs to report the use of a checklist in 2012.

5. New Jersey PIP regulations. Jeff Shanton, chair of the advocacy and legislative affairs committee of the NJAASC, recently submitted comments to the New Jersey Department of Banking Insurance on the proposed state PIP regulations.

The original regulation was proposed Aug. 1, 2011.  Due to the large volume of comments received, the Department of Banking and Insurance decided to make substantive changes, which will trigger a further comment period, ending April 21, 2012.

Changes include:

• A new, separate fee schedule for hospital outpatient departments, the Hospital Outpatient Surgical Facility. Previously ASCs and HOPD were lumped together on the same fee schedule. This new HOSF includes procedures that are not payable if performed at ASCs, and the rates are higher.
• Deletion of 117 procedure codes performed by neuro and spine surgeons from the physician fee schedule. These will now be paid UCR for the professional fee. Some remain on the Outpatient Surgical Facility and HOSF schedules, so the facility would be reimbursed per fee schedule.  
• Deletion of WCMCO network language.
• Correction of various errors.

Mr. Shanton pointed out that the removed procedure codes represent a significant number of pain management, spine and orthopedic volume and revenue. "What the deleted codes do represent are lucrative codes in terms of reimbursement, so they can indeed very adversely affect the bottom line for a center," he said. He said there are ASCs that specialize in spinal procedures and depend on those procedures for a large portion of their business; those surgery centers would be adversely affected by the regulations.

6. Kentucky legislation allowing nurses to administer anesthesia. Kentucky Gov. Steve Beshear announced last week that the state will exempt hospitals and ambulatory surgery centers from the federal requirement that certified nurse anesthetists must be supervised by a physician when administering anesthesia. According to Mr. Beshear, the change is a necessary step in improving access to care in rural and underserved areas of the state. The Kentucky Society of Anesthesiologists disagrees, saying, "An opt-out would have dangerous ramifications to the patients of Kentucky and jeopardize Kentucky's ability to deliver quality medical care."

Kentucky joins 16 other states that have opted out of the federal requirement for physician supervision of anesthesia provision. Iowa was the first state to opt out in December 2001, and Colorado recently opted out in September 2010. Colorado's opt-out followed a controversial study published in the August 2010 issue of Health Affairs that claimed patients were not harmed when CRNAs provide anesthesia without physician supervision.

Related Articles on Surgery Centers:
Virginia Urology Seeks Approval for New Colonel Heights Surgery Center
7 Steps to Implement Pacemaker Generator Insertion at an ASC
6 Steps to Adding Orthopedics to Your ASC

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