Digital Debut

Keep Your Eye on These January Bills

Trends in legislation that impact ASC

BY STEPHEN ABRESCH | FEBRUARY 2020

Several states introduced legislation that are consequential to ASCs in the first month of the year. Thirty-six states had convened their legislative sessions and 30 governors had delivered state of the state addresses by the end of January, laying out their plans and priorities for the coming legislative year. Several states have already begun work on budget negotiations as well, with New York Governor Andrew Cuomo ruffling more than a few feathers with his Medicaid reform plan pitched as part of his larger executive budget proposal.

Matching ASCA’s expectations from December, new bill introductions showed a sustained interest among state legislators for amending and, in some cases, eliminating state certificate of need (CON) programs. In January, 14 states introduced legislation addressing their state CON programs, bringing the total number of states with active CON legislation in the 2019–2020 session to 23. Additionally, South Carolina and West Virginia both have introduced legislation that would eliminate their CON programs entirely; eight states—Alaska, Alabama, Kentucky, Missouri, North Carolina, South Carolina, Tennessee and West Virginia—now have such legislation. No new legislation was introduced in January to specifically exempt ASCs from state CON programs, leaving the current total at eight bills in four states: Georgia, North Carolina, Virginia and Washington.

A focus on billing and transparency issues turned out to be another major trend in the January bills. Sixteen states introduced new legislation to address out-of-network, balance billing and surprise billing issues, and 12 of those states—Georgia, Idaho, Indiana, Mississippi, Missouri, Nebraska, New Jersey, Rhode Island, Vermont, Virginia, Washington and West Virginia—now have active legislation that would impact ASCs. Pricing transparency legislation also has been a focus in January, with 20 states introducing new legislation. While many pricing transparency measures focus on the cost of pharmaceuticals, nine states—Florida, Georgia, Indiana, Kansas, Michigan, New Jersey, Vermont, Virginia and West Virginia—have introduced legislation that would impose pricing transparency requirements on healthcare services in which ASCs are generally included.

Also last month, the Association of periOperative Registered Nurses (AORN) continued pushing for surgical smoke evacuation legislation. Kentucky officially introduced a previously filed draft measure on smoke evacuation and Georgia, Iowa, Oregon and Tennessee introduced new bills on the same. Currently six states—including Utah, with an early February introduction—have active surgical smoke evacuation legislation. To date, these measures have roughly matched the language passed in Colorado in 2019, which requires hospitals and ASCs to implement a policy that prevents exposure to surgical smoke through the use of a surgical smoke evacuation system.

In addition to AORN’s efforts around surgical smoke, ASCA also has identified a concentrated push by optometry groups across the country to open up optometrist scope of practice laws and redefine the kinds of procedures that the profession is allowed to perform. Six states—Alabama, Idaho, Iowa, Mississippi, Nebraska and Wyoming—now have active legislation that would grant optometrists an expanded scope of practice, continuing an effort that also was active in 2019.

While the start of the year is typically defined by heavy volumes of new bills being introduced, some states also began moving legislation. Noteworthy legislation receiving consideration in January included:

• HB 1332 in Indiana, which would allow ASCs to be reimbursed for workers’ compensation cases at 225 percent of the Medicare reimbursement rate. The Indiana House passed the measure by a vote of 91–1 and it now awaits consideration in the Senate;
• Indiana HB 1004, a balance billing measure that applies to non-emergency services. The House passed this bill and it received a unanimous vote of approval. The sponsor collaborated with several high-profile state associations on the measure, including the Indiana Hospital Association (IHA) and the Indiana Federation of Ambulatory Surgical Centers (IFASC), and has expressed optimism that the measure would receive positive consideration during the legislative session;
• Michigan HB 4203 and HB 4204, which together would exempt prosthetic devices from the state sales and use tax. Their second chamber committee of referral passed them and they are now ready for their final consideration on the floor of the Senate; and
• Colorado HB 1050, which would allow ASCs to make casual sales or loans of prescription drugs to other registered outlets or drug wholesalers. This measure gained passage out of its initial committee of referral and awaits further consideration on the floor of the House. The Colorado Ambulatory Surgery Center Association (CASCA) supports this bill.

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