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ASCA Comments on Medicare’s 2022 Proposed Payment Rule

Procedure list and quality reporting top the list of issues raised

BY KARA NEWBURY | SEPTEMBER 2021

Last week, ASCA submitted its comments in response to the calendar year (CY) 2022 Hospital Outpatient Prospective Payment System (OPPS) and Ambulatory Surgical Center (ASC) Payment System proposed rule (“Proposed Rule”) (86 Fed. Reg. 42018, August 4, 2021). While the rule includes encouraging signs that the Biden administration is committed to improving the healthcare delivery system, it also contains troubling developments that take a step backward in terms of clinical discretion, access to care and adding administrative burden to ASCs without a corresponding quality improvement.

In its comments, a few highlights of which are included below, ASCA continues to ask the Centers for Medicare & Medicaid Services (CMS) to act to encourage the clinically appropriate migration of services into the lower-priced ASC setting to ensure beneficiary access to the high-quality care that surgery centers provide.

Proposed Changes to the List of ASC Covered Surgical Procedures for CY 2022

ASCA opposes the complete reversal of the 2021 changes that added 258 codes to the ASC Covered Procedures List (ASC-CPL) based on revised criteria and has concerns with the sweeping change and the tone in which it is described in the rule. Appendix B highlights the codes ASCA members requested stay on the ASC-CPL, as well as codes for which there was significant volume in the ASC setting in the past couple of years, indicating these procedures were already being safely performed in the ASC setting. The majority of ASCA’s comments, however, address troubling language in the Proposed Rule, including the lack of understanding of the regulations ASCs must comply with and how those compare to the regulatory framework for hospital outpatient departments (HOPD).

The Proposed Rule includes an incorrect assessment of the regulatory requirements for HOPDs versus ASCs. CMS argues that “while there are similarities between the ASC and HOPD settings, there are also significant differences between the two care settings.” The rule gives as examples that “hospitals operate 24/7 and are subject to EMTALA requirements, while ASCs are not,” and uses that to conclude that “a procedure that can be furnished in the HOPD setting is not necessarily safe and appropriate to perform in an ASC setting simply because we make payment for the procedure when it is furnished in the HOPD setting.”

An HOPD is simply a department of a hospital, it is not a fully-functioning hospital on its own. An HOPD can be up to 35 miles away from a hospital’s campus. Those facilities are not open 24/7, and a patient would not be transferred to an HOPD in case of an emergency, as the facility is not necessarily equipped with, or even close to, an emergency department. ASCs are subject to a rigid set of survey and certification standards designed to ensure patient safety.

Nomination Process for Additions to ASC-CPL

ASCA supports the nomination process for adding codes to the ASC-CPL and agrees that a more formal nomination process would provide greater transparency to the process. CMS indicates the agency “would address in rulemaking nominated procedures for which stakeholders have provided sufficient information for us to evaluate the procedure.” More guidance as to what is deemed sufficient would be helpful, whether outcomes data from individual facilities would be considered, or peer-reviewed research is required.

Key Comments on ASC Quality and Proposed Reporting Program Changes

ASCA supports the resumption of ASC-1 through ASC-4 for CY 2023 and requests that similar measures be added to the HOPD quality reporting program to allow for better comparisons across sites of service. When the ASC community began advocating for its own Medicare quality reporting program, it promoted measures that would provide information on patient outcomes and advocated for ASC-1: Patient Burn; ASC-2: Patient Fall; ASC-3: Wrong Site, Wrong Side, Wrong Patient, Wrong Procedure, Wrong Implant; and ASC-4: All-Cause Hospital Transfer/Admission. ASCA recommends that CMS not only reestablish data reporting for ASC-1 through ASC-4 in future rulemaking but also add similar measures for HOPDs and physicians performing surgery in their offices to provide patients with more meaningful data to compare sites of service.

ASCA has concerns with ASCs’ ability to operationalize the proposed COVID-19 Vaccination Coverage Among Healthcare Personnel (HCP) measure. When a new measure is proposed for addition, particularly with a short turnaround time for compliance, it must be clear that the benefits of the measure will outweigh the burden. There is not any evidence that ASCs are contributing to the spread of COVID-19.

Even if CMS finalizes this measure as proposed, ASCA asks for some flexibility, such as requiring ASCs to submit a new report only during months in which there was a change in staff instead of every month. In addition, reporting is proposed to begin January 2022. With the operational issues ASCs faced previously with the Centers for Disease Control and Prevention's (CDC) National Healthcare Safety Network (NHSN), the same portal through which ASCs would be required to submit data on this measure, ASCA is concerned that facilities will not be registered and able to submit data that soon. ASCA requests that if CMS chooses to finalize this measure, that the agency delay reporting until at least the second quarter of 2022.

ASCA strongly opposes ASC-11 as a mandatory measure. ASC-11: Cataracts: Improvement in Patient’s Visual Function within 90 Days Following Cataract Surgery was never intended to measure facility performance. This measure relies on the use of data obtained by the physician and recorded in the medical records housed in the physician office at two key points in time: (1) the patient’s visit(s) with the physician during which the evaluation, examination and discussion may result in a decision for surgery, and (2) the patient’s visit(s) with the physician after surgery and during the post-operative 90-day global period. ASCs do not have access to these records, and the results of this measure are already reported through the physician quality reporting system. Asking ASCs to report this measure is redundant, administratively burdensome and not reflective of the attributes of the ASC facility or the actions of its staff during the patient’s time in the facility.

The Consumer Assessment of Healthcare Providers and Systems Outpatient and Ambulatory Surgery Survey (OAS CAHPS) should be modified to reduce the administrative and financial burden on ASCs. CMS previously cited its desire to “appropriately account for the burden associated with administering the survey in the outpatient setting of care” as one reason for delaying mandatory implementation of the OAS CAHPS and the five measures based on the survey. ASCA continues to support delaying mandatory implementation of the survey until it is shortened and there is an electronic option available, as these developments will significantly reduce the cost and administrative burden to facilities, and make the survey easier for patients to complete.

State Associations and ASCA Members Come Together to Advocate

For the first time in its history, ASCA coordinated a state association sign-on letter this year. While many state associations submit their own comments, ASCA decided this would give an opportunity for state associations to come together and raise their collective voices. In response, 31 out of the approximately 37 active state associations signed onto a letter to CMS, echoing the concerns raised in ASCA’s comment letter and showing that associations across the country were aligned in their support of changes that would help the ASC community continue to thrive.

ASCA also would like to thank ASCA members that took the time to comment, either using ASCA’s template letters or raising separate issues of concern for their facilities. It was as important as ever this year for CMS to hear from the facilities that are directly impacted by these proposed policies. ASCA staff truly appreciates all those who sent letters and made their voices heard.