Here are three recent updates from federal entities that are affecting the ASC industry:
1. In October, HHS' Office of Inspector General confirmed broad protection of employee safe harbor under anti-kickback laws in a recent ruling. The OIG was considering a proposed bonus pay for physician employees of a physician practice that operates two ASCs. Under the proposed methodology, physicians who performed procedures at the ASCs would receive 30% of the net profits from the ASC facility fee.
The ruling stated that although the methodology would violate anti-kickback law, it would be protected under the statutory exception and regulatory safe harbor for employees, given that the physician recipients were employees of the practice.
2. In July, in its proposed Medicare physician fee schedule for 2024, CMS is floating a 3.34 percent conversion factor decrease. The proposed physician fee schedule conversion factor for 2024 is $32.75, down 3.34 percent from $33.89 in 2023.
3. In July, the Consolidated Appropriations Act of 2023 updated exceptions to Stark law and anti-kickback law that will allow hospitals and healthcare providers to improve mental health services for physicians. The law issues a new exception for physician wellness programs offered by healthcare entities, including ASCs, hospitals and physician practices.