Regulatory Affairs: CMS 2023 Final Rule Has Mixed Results for ASCs

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Lowlights include few new ASC-approved procedures, small fee increase.

A mere four procedures were added to the Centers for Medicare & Medicaid Services’ (CMS) ASC-approved list for 2023, a decision met with disappointment and frustration by advocates for ambulatory surgery centers across the U.S. 
CMS issued the decision on Nov. 1, as it does each year, when it announced its Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System Final Rule. The new rule goes into effect Jan. 1.

Few new CPT codes

The added ASC procedures are:

  • CPT code 19307, a lymph node biopsy; 
  • CPT code 37193, endovascular removal of a vena cava filter; 
  • CPT code 38531, an open inguinofemoral biopsy 
    procedure; and 
  • CPT code 43774, the removal of subcutaneous port components and adjustable gastric restrictive devices.

CMS said in a statement that its 2023 Final Rule aligns with several key goals of the Biden Administration, including “promoting safe, effective and patient-centered care.”

The Ambulatory Surgery Center Association (ASCA) suggested adding nearly four dozen procedures that have long histories of good outcomes in non-Medicare patients to the ASC-approved list. “CMS’s decision to add only four new procedures to the ASC-CPL for 2023 after ASCA proposed 47 procedures that ASCs are performing safely and successfully for privately insured patients is a serious mistake and denies beneficiary access to high-value care,” says ASCA CEO Bill Prentice. “Forcing otherwise healthy Medicare beneficiaries to receive care in higher-cost settings for these procedures needlessly increases costs to the Medicare program and undercuts Medicare’s mission of serving as a responsible steward of public funds.”

A ‘No’ to total shoulders

Many orthopods hoped total shoulder replacements would be the big-ticket ASC-approved addition in 2023, which would have continued the momentum that began when total knees were added in 2019 and increased when total hips followed suit in 2021. That didn’t happen, despite the fact that some patients who undergo the procedure in hospitals go home the same day, even when they were originally scheduled for an overnight inpatient stay. 

“We’ve been doing those larger orthopedic procedures very well and very safely on the non-Medicare beneficiary population for a very long time, which is why orthopedics has clearly been an exceptional growth area in the last decade for ASCs,” says David M. Shapiro, MD, CHC, CHCQM, CHPRM, LHRM, CASC, an anesthesiologist with extensive ASC management experience. “These patients, covered by private insurance, some of whom are of Medicare beneficiary age, have safely undergone joint replacements in ASCs for years.”

Process change needed

The concept of what should be included on the CMS ASC-approved list has varied widely in recent years, seemingly based on which party was in charge of the federal government at the time. For instance, the Republican administration in 2020 announced plans to eliminate the inpatient-only list entirely by 2024 and added 266 procedures to the ASC-approved list in 2021. However, many of those procedures were removed from the list in 2022 when a Democratic administration was in control.

“CMS needs to finally break from the past and get rid of these lists that determine where you can perform a procedure,” says Dr. Shapiro. “They need to be individual clinical decisions in the hands of trained physicians and other healthcare practitioners who, in concert with their patients, make the choice about the proper site of service.” Dr. Shapiro thinks the entire system of approving procedures for inpatient hospitals, HOPDs or ASCs should be scrapped. “My cry to CMS would be to stop assigning procedure codes approved for only certain sites,” he says. “If that ever did make clinical sense, it certainly ended long ago, so our frustration continues.”

Equal, higher facility fee for ASCs

In better news for ASCs, the CMS facility fee will increase by 3.8%, the same amount as HOPDs. That’s 1.1% more than the 2.7% hike CMS had called for when it released its proposed rule in July, before it held its comments period for stakeholders who would be impacted by the decision. 

When the original smaller increase was proposed, some ASC owners and advocates said it wouldn’t keep pace with double-digit inflation that produced an environment of trying to keep pace with rising prices for supplies that were in short supply no matter what they cost. While the final increase is larger than what was first proposed, some say it still falls short. “CMS needs to do more to support ASCs in confronting the rising costs of providing care to beneficiaries or risk losing access to the outstanding care and significant cost savings ASCs provide,” says Mr. Prentice. The 3.8% increase is an average figure and can vary, sometimes widely, based on location, CPT code and surgical line of service. 

CMS is in the final year of a five-year pilot that applies the Hospital Market Basket as the price index to determine the next year’s Medicare payment rates for ASCs. The Hospital Market Basket is an extremely targeted look at how inflation impacts the healthcare industry — the same index CMS uses for HOPDs. CMS hasn’t decided whether it will continue the pilot, but ASCA believes it should because the alternative is using a broader inflationary index not specific to healthcare spending that leads to smaller increases for ASCs than what HOPDs received. 

Some other parts of the Final Rule were also viewed positively by ASCA. New “complexity adjustments” will provide additional reimbursements for ASCs that had to perform additional procedures during complex cases. Mr. Prentice says the adjustments mark a significant change for ASCs and that ASCA will soon provide its members with educational materials about its implementation. ASCA also supported CMS’ decision to suspend the mandatory adoption of an ASC quality reporting program it thinks should be voluntary. OSM

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