Regulatory Affairs: CMS Reverses Course

The 2022 Hospital Outpatient Prospective Payment System and ASC Payment System proposed by CMS is filled with changes that are more curious than cause for serious concern. CMS, which ultimately intends to slow the migration of surgeries from hospitals to ASCs, wants to make two major changes to facility reimbursements next year:

• Do away with the plan to eliminate the inpatient-only list (IPO) by 2024. Nearly 300 of the 1,700 procedures were removed on Jan. 1, 2021. CMS wants to put them back on the list next year.

• Remove 258 of the 266 procedures that were added to the ASC-approved list this year. 

Importantly, knee and hip replacements remain on the ASC-approved list. The cardiovascular codes added to the list in recent years — including those for diagnostic and interventional procedures — will also remain.

“We received a large number of stakeholder comments … that opposed the elimination of the IPO list primarily due to patient safety concerns, stating that the list serves as an important programmatic safeguard,” says CMS in a statement explaining its proposal.

The agency notes that some of the procedures on the IPO list include amputations and invasive spinal procedures. “There are some services designated as inpatient-only that, given their clinical intensity, would not be expected to be performed in the outpatient setting,” says the agency. “This change happened without individually evaluating whether the procedures met the longstanding criteria previously used to determine if a procedure could be safely removed.”

Regarding the ASC-approved list, CMS again cited patient safety concerns as the reason for its proposed reversal. The agency wants to adopt a process by which individual procedures could be nominated and considered for addition to the list. 

American Association of Orthopaedic Surgeons (AAOS) President Daniel K. Guy, MD, FAAOS, supports the latest CMS proposals, noting the elimination of the IPO list was too abrupt. “We continue to support the removal of procedures that have been proven to be done safely in the outpatient setting,” he says. “However, there is much work left to be done to clarify what these proposed changes mean in order to avoid widespread confusion and unintended consequences for patient care.”

Dr. Guy cautions CMS to not go so far with its proposed rollbacks as to create new regulatory barriers that would hinder procedures from moving to the outpatient arena. Physicians should always lead the decision-making process about where procedures can be performed safely and appropriately, he says.

Bill Prentice, CEO of the Ambulatory Surgery Center Association (ASCA), was surprised by CMS’s initial decision to begin eliminating the entire IPO list and add the procedures to the ASC-approved list — policies that went into effect this year. He’s just as surprised by the current proposal to undo the moves. “Pulling them back completely makes no more sense than the decision to dump them in the first place,” says Mr. Prentice.

ASCA says it had been lobbying to add about 45 procedures to the ASC-approved list that are now among the 266 codes CMS wants to remove. These procedures have been performed safely in ASCs for years in patients nearing Medicare age and ASCA has the data to support it, says Mr. Prentice. ASCA is currently asking its members if they want additional procedures scheduled for removal from the ASC-approved list to remain in place. 

The vast majority of the procedures scheduled for return to the IPO list haven’t been performed at ASCs on patients with private insurance or Medicare recipients this year, according to Mr. Prentice. “There’s a grave misunderstanding of the way the Medicare program operates. Many believe that CMS allowing a procedure to be performed in an ASC means that’s where it automatically will take place,” he says. “Removing procedures from the IPO list doesn’t mean they will be performed in outpatient settings.”

That’s always been the case, and that’s why Mr. Prentice says the most important part of CMS’s job moving forward is to work with physicians to decide which surgeries can be performed safely in different settings. “Clinicians must meet with CMS medical directors and make decisions together in a coherent and transparent manner,” he says.

David M. Shapiro, MD, CHC, CHCQM, CHPRM, LHRM, CASC, an anesthesiologist with extensive ASC management experience and a past-president of ASCA, says the proposed payment reversals are nonsensical. “Basically, these changes would give Medicare recipients less of all the things they want — access, transparency, consistency and quality,” he says. “Now we’re in jeopardy of going back to telling those insured by Medicare that, because of your age, you have to go to a hospital with a higher infection rate than the ASCs where younger patients with private insurance are allowed to have their surgery.” OSM