ASC leaders are closely watching several legislative issues as the government shutdown continues into its third week, increasing the potential for delays in CMS’ rulemaking and other administrative processes.
Kara Newbury, chief advocacy officer of the Ambulatory Surgery Center Association, recently joined Becker’s to discuss the shutdown, CMS and other federal policy issues affecting ASCs.
What’s going on with the federal shutdown?
Disruptions are mounting across healthcare as the federal government shutdown continues. The Senate again voted against reopening the federal government Oct. 20, marking the 11th failed attempt to pass a House-approved funding measure. The move extends the shutdown into its 21st day — now the third-longest in modern U.S. history.
While claims submitted to CMS by Medicare contractors were being temporarily held for 10 days in early October, those affecting ASCs should be processed soon, Ms. Newbury said.
“I know there was some confusion with what was going on with the physician fee schedule and their payments, but it sounds like with regards to physician services being provided in the ASC, those should be being processed,” she said.
Certain surveys, such as complaint surveys, are being prioritized over less time-sensitive surveys, such as standard revalidation surveys as CMS faces a temporarily diminished workforce amid the shutdown and government employee furloughs.
While Ms. Newbury is hopeful for an end to the shutdown this week, she said it’s possible that the release of CMS’ finalized payment rule, which was initially proposed July 15, may be delayed further into November, which last occurred during the government shutdown in 2013.
“Typically, we expect our final payment rule to come out on or around Nov. 2,” she said. “And considering the first and second are on a weekend this year, that would probably take place on Halloween. If we don’t see it by Friday, the 31st, all bets are off. [The finalized rule] came out the day before Thanksgiving back in 2013 when we had the shutdown.”
CMS’ final rules for 2026
Shutdown aside, there are several CMS policies that the ASCA is watching closely after it submitted comments to the proposed payment rules in September.
“One of the biggest ones was the procedure list expansion, with 500 and some codes being added to the ASC covered procedure list, including some we had requested in cardiovascular and spine,” Ms. Newbury said.
The use of the hospital market basket to update ASC payments for 2026 is another key policy waiting for finalization by CMS, which has been proposed for one additional year of use. This update is the same that is used to update payments for HOPDs.
“We’ve been on the hospital market basket since 2018 under the first Trump administration, and it’s been continued since,” Ms. Newbury said. “But it’s unclear what will happen after 2026. We are optimistic that, since it was proposed to be extended for 2026, that that would be used. The hospital market basket is a better update historically than the Consumer Price Index for our urban consumers, so we hope to stay on that.”
There were also a few measures proposed for removal from the ASC quality reporting program, including the COVID vaccination for healthcare personnel measure and three health equity measures.
“All of those measures, or similar versions of those, were finalized for removal in the inpatient prospective payment system,” Ms. Newbury said. “So we’re fairly confident that they will also be removed from the HOPD and ASC quality reporting programs as well.”
Site neutrality measures
The ASCA is also paying close attention to the Same Care, Lower Cost Act, a Senate bill that would provide site-neutral payments for certain procedures in HOPDs, ASCs and physician offices.
Under this legislation, payments for services would drop to the rate of whichever site of service performs the plurality of procedures. For instance, if a procedure takes place in the physician office 34% of the time, ASC and HOPD payments would drop to that rate.
“ASCs already have a site-neutral mechanism in our payment system. If a procedure is performed more than 50% of the time in the physician office, we are dropped to the physician rate. Those are called office-based codes,” Ms. Newbury said. “This [update] would expose us to even more procedures that could be dropped to the physician office rate.”
This bill was introduced by Sen. John Kennedy, R-La., though another framework has been discussed by Sens. Bill Cassidy, R-La., and Maggie Hassan, D-N.H. While this new framework has not yet been proposed as a bill, Ms. Newbury believes the proposal is likely to gain more traction than the current legislation.
CMS’ prior authorization project for ASCs
In September, CMS proposed a prior authorization pilot demonstration for ASCs in 10 states: Arizona, California, Florida, Georgia, Maryland, New York, Ohio, Pennsylvania, Tennessee and Texas. It would impact 41 codes among these states, and is slated to go into effect Dec. 15.
On Oct. 15, the ASCA submitted a letter to CMS requesting a delay of the demonstration project.
“For one thing, if we’re in a government shutdown, we think that there are limitations to new programs that can be started by the [MACs] at this time,” Ms. Newbury said. “In addition, the HOPDs have a similar prior authorization program in their setting. It’s our understanding that, when that was started a few years ago, there were some growing pains, and that it took more to operationalize than CMS and the MACs had originally thought. So, we anticipate the same growing pains in the ASC setting.”
She said that ASCA had also asked for this demonstration to go through the payment rule, as it did for HOPDs.
“There was a comment period, but it didn’t go through the more formal annual rulemaking process, so we requested that,” she added. “While those codes that are impacted are predominantly cosmetic in nature, there are some ophthalmic codes that are impacted, as well as a vein ablation code that our facilities are performing. So we’re hoping that CMS will delay that prior authorization demonstration project.”
