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Looking Ahead at 2020 Legislative Sessions

Bills that ASCs need to keep an eye on

BY STEPHEN ABRESCH | JANUARY 2020

Now that the holiday season has wrapped up and 2019 has come to a close, states are preparing to convene their 2020 legislative sessions. Forty-six states will hold a legislative session this year, with Montana, Nevada, North Dakota and Texas not meeting in 2020. Thirty-eight states will convene their sessions in January, six—Alabama, Connecticut, Minnesota, Oklahoma, Oregon and Wyoming—will convene in February and two—Louisiana and Arkansas—will convene in March and April, respectively. This year marks the second year of the two-year biennium for most states, which typically means a lower overall volume of newly introduced bills. Only New Jersey and Virginia will hold the first session of their two-year biennium in 2020, making them the only two states that will carry over legislation from 2020 to 2021.

Recent changes from the Centers for Medicare & Medicaid Services (CMS) are expected to drive some of the conversation at the state level in 2020. Of special interest has been the addition of cardiac catheterization procedures to Medicare’s ASC covered procedure list. Legislation that would allow cardiac catheterization procedures in outpatient settings already has been introduced and scheduled for a committee hearing in Michigan and conversations are ongoing in California regarding the possibility of addressing the matter during its upcoming legislative session. Currently, California is one of a handful of states that explicitly prohibits such procedures from being performed in an outpatient setting. Mississippi also is exploring the possibility of loosening restrictions surrounding cardiac catheterization procedures with the introduction of a proposed rule that would allow cardiac catheterization procedures to be performed in certain limited outpatient settings.

While the bulk of bill introductions will occur in January and February, pre-filed legislation and conversations with state contacts already have given ASCA a sense of what the coming session might hold. Changes to state certificate of need (CON) programs will be a part of the conversation in 2020. Legislation that would abolish their existing CON programs has been pre-filed in Kentucky, Missouri and Washington. Additionally, a package of six bills has been introduced in Michigan, which would make amendments to the state’s existing CON program. The package includes the aforementioned cardiac catheterization measure, which would exempt the procedures from the state’s CON requirements, as well as changes to the requirements to obtain a CON for an air ambulance service, the elimination of a requirement to obtain a CON for covered capital expenditures and an exemption from CON requirements for critical access hospitals. While most of these measures will not directly impact ASCs in the state, ASCA routinely monitors all CON legislation due to the ease with which they can be amended to impact ASCs.

Legislation impacting taxes and fees also has been introduced and pre-filed ahead of the 2020 session. In Massachusetts, Governor Charlie Baker (R-MA) unveiled his healthcare policy proposal at the end of October. As part of the proposal the governor included provisions that would prohibit healthcare providers in the state—including joint venture ASCs—from charging facility fees. Work already has begun to get this language stripped out in committee, and ASCA’s contacts in the state anticipate the measure will receive a public hearing at the end of January. In Washington State, a measure has been pre-filed that would exempt healthcare services from the new business and occupation surcharge enacted during the 2019 session. The surcharge of 20 percent on top of the existing state business and occupation tax imposed on healthcare services went into effect January 1, 2020.

ASCA also has learned of two potential model legislation pushes in 2020. The Association of periOperative Registered Nurses (AORN) will advocate for legislation to require hospitals and ASCs to implement policies to prevent human exposure to surgical smoke by using a surgical smoke evacuation system. Hoping to build off its successes in Rhode Island and Oregon over the past two years, AORN plans to push the legislation in six states during the 2020 session. Early reports suggest that Tennessee and Georgia will be among the first to see legislation introduced on the topic in the new year.

Model legislation on vendor credentialing also is expected in 2020, with device manufacturers and trade groups working to pass legislation that would impose standardized requirements for the verification of supplier representatives across health facilities and states. The legislation establishes the ANSI/NEMA SC 1-2019 Standard for Supplier Credentialing in Healthcare as the single benchmark for a standardized healthcare vendor credentialing process and creates a board of representatives to implement and enforce the standards established under the legislation. Backers of the model legislation are eyeing California, Connecticut, Massachusetts, Minnesota, New Jersey, New York and Tennessee as potential states for introduction.

For more information or questions on state legislative and regulatory activities, write Stephen Abresch, ASCA’s associate director of Government Affairs, State Affairs.