Regulatory Affairs: A Game Changer at CMS

A shift in politics in Washington likely equates to a brighter 2026 for ASCs.

What a difference a new administration can make. After years of dismal news when the Center for Medicare & Medicaid Services (CMS) announced its payment rules for ambulatory surgery centers, the ASC industry is comparatively pleased with the proposal for 2026 that was released last month.

The public comment period for the 913-page proposal ended Sept. 15. CMS is scheduled to release its final rule, which will take effect on Jan. 1, 2026, on Nov. 1.

Vast addition of procedures

The proposed rule includes a broad expansion to the ASC-Covered Procedure List. More than 275 codes that are currently payable at hospital outpatient departments are proposed for reimbursement at ASCs. The most notable are cardiac ablation CPT codes (93650, 93653, 93654 and 93656) that were lobbied for by the American College of Cardiology and the Heart Rhythm Society, as well as two lumbar fusion CPT codes (22630 and 22633) that the Ambulatory Surgery Center Association (ASCA) has been a proponent of for years.

The proposal also includes the elimination of the Inpatient-Only (IPO) list over a three-year period. The same proposal was made at the end of the first Trump Administration but never came to be after he was defeated by Joe Biden in 2020. This version of the proposed elimination of the IPO list is even more ambitious, however, as the first version of the proposal did not suggest that the procedures coming off the IPO list be directly added to the ASC-Covered Procedure List. This version proposes exactly that. For 2026, the first year of the proposed IPO-list three-year elimination, the procedures would be mostly musculoskeletal codes.

“This proposal shows that CMS has gone back to realizing that the surgeons, anesthesiologists, nursing staff and other clinical staff that treat patients in an ASC are actually very well qualified to know what the best site of service is for a patient,” says David Shapiro, MD, CASC, an anesthesiologist who practices in Florida and a board member of the ASC Quality Collaboration (ASC QC), a nonprofit advocacy group. “This proposal acknowledges that doctors can do a better job than CMS to determine the most appropriate types of sites of service for patients.”

Elimination of equity, other measures

The requirement that ASCs must continue to report COVID-19 vaccination coverage data for their staff is recommended to be removed from CMS’ ASC Quality Reporting Program (ASCQR), as are three health-equity reporting measures: the Facility Commitment to Health Equity, the Screening for Social Drivers of Health, and the Screen Positive Rate for Social Drivers of Health. CMS, under the previous administration, said this additional reporting was devised to ensure patient safety and reduce hospital admissions. ASCs faced the prospect of being assessed a two-percentage-point penalty to their annual payment rate updates if they didn’t comply. The measures are now scheduled for removal.

Dr. Shapiro says the proposed removals would be addition by subtraction for ASCs.

“First, the COVID reporting we’ve been forced to do on a quarterly basis is persistently ridiculous. There’s no other word for it,” he says. “The other three about social determinants are important issues for our patients, but we just don’t think that they are appropriate for measurement and reporting in the ASC environment. That doesn’t diminish the overall importance of these determinants for patients, but they really aren’t related to what we can do in an ASC, so they’re really unactionable things that we’d be collecting data for and then not be able to affect any change in that regard.”

The fact that these measures were considered appropriate for ambulatory surgery centers in the first place shows a continued fundamental lack of understanding about what ASCs do, adds Dr. Shapiro.

“We’re pleased those are proposed for removal, and hopefully they will never reappear, regardless of what administration is sitting in the White House or which party is controlling Congress, because they were really inappropriate from the get-go,” he says.

The Outpatient and Ambulatory Surgery (OAS) CAHPS Survey, which many ASCs find cumbersome, problematic and not as effective at gathering good data as the patient-satisfaction surveys it in many cases replaced, remains in effect.

Compensation concerns

CMS has put forth to continue use of the hospital market basket to determine payments to ASCs in 2026, an extension of a five-year pilot program to better align payments with what HOPDs will receive. The hospital market basket is an extremely targeted look at how inflation impacts the healthcare industry — the same index CMS uses for HOPDs. Many ASC advocates like the market basket because the alternative of using a broader inflationary index not specific to healthcare spending would likely lead to smaller increases for ASCs than what HOPDs receive. The recommended 2026 increase for procedure reimbursement is effectively 2.4% for ASCs and HOPDs.

There is also concern about a 4% suggested reimbursement reduction to a high-volume cataract procedure code, which could be particularly troubling on top of proposed cuts to the 2026 Medicare Physician Fee Schedule.

“The payment portion of the rule mostly has us treading water, so it’s almost like a non-event,” says Dr. Shapiro. “Overall, however, I think this proposed rule is a really good start. Philosophically, it looks like CMS is recognizing the fact that this whole idea of exclusionary criteria keeps us from being able to perform so many appropriate procedures for Medicare beneficiaries. If they start treating us like what we are, which is a great site of service for appropriate patients and appropriate procedures, and start allowing the physicians to make the decisions, we’ll be in great shape.” OSM