Digital Debut

State Legislative Trends in 2023

Focus on price transparency requirements continues, concerns with facility fees emerge

BY STEPHEN ABRESCH | DECEMBER 2023

In 2023, ASCA tracked more than 650 bills across the 50 states for potential impacts on ASCs. Certain trends from past years continued, like the focus on surgical smoke evacuation requirements and state-level price transparency requirements. New, disturbing trends also arose, including facility fee prohibition proposals across the country. Additionally, some major changes occurred around certificate of need (CON) laws in the South.

Facility Fees

In state capitals and Congress, interest in limiting restricting facility fees to control healthcare costs exploded in 2023. While the stated intent of these efforts is to stop hospitals from purchasing off-campus facilities and then charging hospital facility fees at those locations, state lawmakers have almost uniformly failed to draft their legislation in a way that limits the prohibition to hospital-owned, off-campus facilities, resulting in legislation that would prohibit any healthcare provider not on a hospital’s campus from charging a facility fee.

In 2023, six states—Colorado, Connecticut, Maine, Massachusetts, North Carolina and Texas—considered facility fee proposals that, had they been enacted as introduced, would have prohibited ASCs from charging facility fees, effectively killing the ASC communities in their states.

State ASC associations played a key role in fending off these proposals, with the Colorado Ambulatory Surgery Center Association, the Connecticut Association of Ambulatory Surgery Centers and the Texas Ambulatory Surgery Center Society all successfully protecting their ASC communities from the effects of these proposals. In Maine, the proposal was converted into a study on facility fees prior to enactment, while the proposals in Massachusetts and North Carolina will remain active in 2024.

Price Transparency

Nine states—Colorado, Florida, Illinois, Iowa, Massachusetts, Minnesota, New Jersey, North Carolina and Texas—considered legislation that would impose new price transparency requirements on ASCs. Price estimate legislation in Colorado and itemized billing requirements in Texas were both enacted this year.

Proposals considered at the state level included requiring price estimates to be given to patients prior to nonemergency surgery, meaning ASCs would need to disclose the “discounted cash price” they would accept for specific healthcare services or comply with federal hospital price transparency requirements. Texas considered and enacted an itemized billing requirement that makes ASCs submit a written, itemized bill of the alleged cost of each service provided to the patient and the supplies used in their care. Legislation enacted in Colorado requires healthcare providers to give self-pay estimates prior to the provision of services to self-pay patients.

Certificate of Need

Major developments occurred in North and South Carolina as both states enacted significant reforms to their CON programs.

In North Carolina, the CON reform legislation created a new, CON-exempt class of ASCs, called “qualified urban ambulatory surgical facilities,” though the new class of ASCs will not become effective until the first payments are made to acute care hospitals through the state’s plan to participate in the Healthcare Access and Stabilization Program (HASP). The reform was years in the making, as was the Medicaid expansion language that it was ultimately paired with to secure passage and enactment.

South Carolina adopted much more sweeping reforms, fully repealing its CON requirements for all facility types, except nursing homes and the Medical University of South Carolina. The hospital CON requirements, however, will remain until 2027. While ASCs will no longer need to obtain a CON, the legislation did introduce certain new licensing requirements for ASCs, namely that surgery centers must provide specified amounts of charity/indigent care annually or be subject to a monetary penalty. Like North Carolina, the effort to reform the state’s CON requirements were years in the making, dating back at least a decade to efforts then-Governor Nikki Haley made to eliminate funding for the program. Ultimately, with the support of the General Assembly and the governor, even the state hospital association chose to support the measure.

Surgical Smoke

Eleven states—California, Florida, Louisiana, Massachusetts, Missouri, New Jersey, North Carolina, Ohio, Pennsylvania, Texas and West Virginia—considered 20 pieces of legislation requiring the evacuation of surgical smoke last year. Five of those states—California, Louisiana, Missouri, New Jersey and Ohio—enacted their legislation, bringing the total number of states with surgical smoke evacuation requirements on the books to 15. As with past surgical smoke evacuation requirements, these new laws require facilities to mitigate exposure to surgical smoke with surgical smoke evacuation systems.

ASCA keeps its members apprised of major developments and jurisdictions in all 50 states through its biweekly advocacy calls and direct communications. For more information on state legislative trends in 2023, read State Legislative Roundup 2023 in the February 2024 edition of ASC Focus magazine.

Write Stephen Abresch with any questions.