Federal Government Affairs News and Notes:

WISCA works closely with our national association partner – the Ambulatory Surgery Center Association (ASCA) – on advocacy and other issues important to our members. In fact, the WISCA Government Affairs Team joins a national ASCA state chapter call twice a month for a federal regulatory and legislative briefing and closely follows their published Government Affairs Updates. Here is the latest government affairs news from ASCA:

• CMS Releases 2023 Proposed Medicare Payment Rule

The Centers for Medicare & Medicaid Services (CMS) released the 2023 proposed payment rule for ASCs and hospital outpatient departments (HOPD) on July 15, 2022.

CMS proposed to continue to align the ASC update factor with the one used to update HOPD payments. Under the proposal, CMS would continue to use the hospital market basket to update ASC payments for calendar year (CY) 2023 as the agency assesses this policy’s impact on volume migration. This will be the last year of the trial period.

If the proposed rule were to be finalized as drafted, ASCs would see, on average over all covered procedures, an effective update of 2.7 percent, which is a combination of a 3.1 percent inflation update based on the hospital market basket and a productivity reduction mandated by the Affordable Care Act of 0.4 percentage points. This is an average and the updates might vary significantly by code and specialty.

In addition, although ASCA provided a list of 47 codes for procedures that are being done safely on non-Medicare populations for consideration to be added to the ASC Covered Procedures List (ASC-CPL), CMS added only one of the requested codes: 38531 (Open bx/exc inguinofem nodes).

“This proposed rule misses an opportunity to lower costs and improve access to care to beneficiaries by not adding many viable procedures that ASCs are safely performing on commercial patients,” says Bill Prentice, chief executive officer of ASCA. “We have provided clinical data to CMS that should be used to add these procedures to our allowable list for 2023.”

The payment rule proposals include:

• An update to the ASC conversion factor using the hospital market basket. The new conversion factor would be increased by 2.7% for facilities that meet the quality reporting requirements.
• An update to the ASC Relative Payment Weights for CY 2023, which includes an ASC weight scalar of 0.8474.
• Changes to the Inpatient Only (IPO) List, which would remove ten codes from the IPO list for 2023.
• The addition of one code to the ASC-CPL for 2023 (38531 – Open bx/exc inguinofem nodes).
• ASCA seeks outcomes data to represent the safety and quality care of ASCs. CMS indicated that they would not add additional codes without this data.
• A name and start date change for the nomination process. The name change would switch from “Nominations” to the “Pre-Proposed Rule CPL Recommendation Process.”
• The nominations process start date is revised to January 1, 2024.
• A complexity adjustment that adds 52 new C codes to the ASC-CPL. This would create a special payment policy for code combinations that result in more complex and costly procedures, similar to the complexity adjustment currently available in the Outpatient Prospective Payment System (OPPS).
• An ASC payment system policy for non-opioid pain management drugs and biologicals that function as surgical supplies.
• The delay of ASC-11 Cataracts: Improvement in Patient’s Visual Function within 90 Days Following Cataracts Surgery and the continuation of voluntary reporting for the measure. There is also a proposal to adopt a volume indicator such as ASC-7 potentially, and there were no changes made to ASC-20 COVID-19- Vaccination Coverage for Healthcare Personnel.
• A Request for Information about using CMS data to drive competition in healthcare marketplaces.

CLICK HERE to review the full rule and HERE for the rule analysis.

ASCA will provide additional analysis soon, including a rate calculator that allows users to determine what ASCs will be paid locally if the proposal is adopted.

• ASC Facility Tours

Every year, National ASC Month is celebrated in August to highlight the achievements of ASCs across the country, coinciding with Congress’s long August recess. If your ASC is interested in hosting a facility tour for your member of Congress, please complete ASCA’s Facility Tour Interest Form or visit ASCA’s facility tour webpage for more information. In addition, you can also contact the WISCA office at WISCA@badgerbay.co to set up a legislative tour of your ASC with either your member of Congress or local state legislators. In fact, WISCA recently coordinated a tour of the Northwoods Surgery Center in Woodruff, WI with Congressman Tom Tiffany, State Senator Mary Felzkowski, and State Representative Rob Swearengen.

WISCA Legislative Affairs Report:
WISCA Submits Public Comments on Proposed Medical Chaperone Rule

By Andrew Engel – WISCA Lobbyist (Hamilton Consulting)

Good news from the Medical Examining Board (MEB)! The MEB has recently decided against moving forward with the Medical Chaperone Rule as it was written. If you recall, the regulatory board was considering a new rule that would have required a medical chaperone be present in an exam room whenever a physician is performing an examination or procedure that involves the breast, genitals, or rectal area of a patient. In addition, the proposed rule would consider these types of exams conducted without a chaperone as unprofessional conduct.

I want to take this opportunity to thank all the WISCA members who played a role in shaping our Economic Impact response to the MEB on the proposed rule.  It’s clear that the costs of implementing the rule was the key factor in MEB moving away from it. 

While the MEB was hoping that previous revisions to their proposal would reduce the estimated costs, their attorney Jameson Whitney said, “they did not.” The total estimated implementation and compliance costs of the rule, based on comments from providers including major systems like Aurora and SSM as well as specialty and independent practices and ASCs, came to about $75 million annually. That far exceeds the state’s rulemaking threshold of $10 million over two years.  Any language that would require ASCs to provide chaperones appears to be dead for the foreseeable future.

Whitney laid out an alternative option of draft language that would state: “A physician shall comply with the rules established by their hospital or employer regarding chaperones or other observers in patient examinations.” It would also require self-employed physicians to establish a written policy on chaperones/observers.

Whitney acknowledged that this policy could be as simple as “we don’t use chaperones here.” He noted that some systems already have a detailed chaperone policy in place, so this rule wouldn’t force them to change what is working for them. Also, some comments from specialty practices and clinics suggested that the chaperone requirements just don’t make sense for the types of procedures they do.

MEB members discussed Whitney’s proposal and generally agreed that it was better to do something rather than nothing. Signaling to practitioners and providers that MEB takes the issue seriously and will aggressively pursue misconduct claims in this area. Board members confirmed that they will be able to review an applicable written chaperone policy when a misconduct claim arises.

MEB will wait until its next meeting to vote on moving forward with the new language. Whitney predicted that economic impact comments on this version would estimate little to no compliance cost. MEB Chair Dr. Sheldon Wasserman also asked staff to begin auditing the last 20-25 years of disciplinary cases involving sexual assault and violations of patient boundaries to get an idea of the volume of these claims and how they have been investigated in the past.

Wisconsin Sen. Van Wanggaard Visits the Racine Digestive Health Center

Wisconsin Sen. Van Wanggaard (R-Racine) recently visited the Racine Digestive Health Center as part of the Association of Wisconsin Surgery Centers (WISCA) Capitol Connection program to connect WISCA members with their local state legislators to show them firsthand the benefits of the Ambulatory Surgery Center (ASC) model of care. The Racine Digestive Health Center is part of GI Associates, the largest gastrointestinal practice in Wisconsin.

Sen. Van Wanggaard (second from right) takes a few minutes to take a picture with Racine Digestive Health Center staff after his tour of the facility.

“We were thrilled to have Sen. Wanggaard at our Racine facility and appreciated the opportunity to showcase the value of patient care provided in Wisconsin surgery centers,” said Bob  Kwech, Executive Director at GI Associates and WISCA Legislative Chair. “Our team is committed to proving innovative, personalized care in the most cost effective means possible for our patients, and we were grateful for Sen. Wanggaard’s interest in the critical role surgery centers play in Wisconsin’s health care system.”

Wanggaard, who was first elected to the Wisconsin Senate in 2010, represents the 21st Senate District, which includes portions of Racine and Kenosha Counties. He serves as the Senate Majority Caucus Chair and is Chairman of the Senate Judiciary and Public Safety Committee.

These ASC legislative visits set-up through the Capitol Connection program have a significant impact on lawmakers and truly helps WISCA members strengthen relationships with their legislators and educate them on the regulatory challenges ASCs face and the legislative solutions we need to increase access to affordable, quality care provided in the surgery center setting. It also allows policymakers to see how the ASC model of care has transformed the outpatient experience for patients, providing them with a more convenient alternative to hospital-based outpatient procedures at a lower cost and with a strong record of quality care and positive outcomes.

If you would like to host a legislative tour at your site, please contact the WISCA office at WISCA@badgerbay.co. We will work with you and your legislators to coordinate the meetings and will provide participating members with full support, including legislator bios, advocacy tips, issue briefings, and supporting documents. 

Federal Government Affairs News and Notes:

WISCA works closely with our national association partner – the Ambulatory Surgery Center Association (ASCA) – on advocacy and other issues important to our members. In fact, the WISCA Government Affairs Team joins a national ASCA state chapter call twice a month for a federal regulatory and legislative briefing and closely follows their published Government Affairs Updates. Here is the latest government affairs news from ASCA:

• CMS Issues Two New Memos for State Surveyors
  In June, the Centers for Medicare & Medicaid Services (CMS) issued two new memos for state surveyors related to vaccination requirements for surveyors and the frequency of surveys for compliance with the federal healthcare worker COVID-19 vaccination mandate.
• • QSO-22-17-ALL, issued June 14, reduces the frequency that state survey agencies (SA) and accrediting organizations (AO) will review a facility’s compliance with the federal healthcare worker COVID-19 vaccination mandate. Under this guidance, state survey agencies and accrediting organizations will only perform compliance reviews for staff vaccinations during initial and recertification surveys and in response to specific complaint allegations that allege noncompliance with the staff vaccination requirement. SAs and AOs will no longer be expected to perform these reviews on every survey. The memo also notes that CMS intends to update its interpretive guidance describing Immediate Jeopardy, Condition-level and actual harm determinations to ensure deficiency citations recognize good faith efforts by providers/suppliers and to more fully evaluate harm or potential harm to patients/residents by considering trends in COVID-19 rates in the community.
  • QSO-22-18-ALL, issued June 16, rescinds QSO-22-10-ALL (issued January 25) which had established that SAs and AOs entering provider and supplier locations must be vaccinated. Under the new guidance from QSO-22-18-ALL, CMS notes that under the original guidance, “State Survey Agencies and [Accrediting Organizations] are ultimately responsible for compliance with this expectation.” The new guidance also notes that the federal government has explained that the previous guidance does not include any possibility of penalties for noncompliance and actually prohibits facilities from inquiring about surveyor vaccination status, stating, “We understand that there is nonetheless some ongoing confusion about this guidance, which we expect this [rescission] will resolve.”
• CMS Updates Guidance on Emergency Exercises
  The Centers for Medicare & Medicaid Services (CMS) recently updated its surveyor memo that provides “Guidance related to Emergency Preparedness- Exercise Exemption based on A Facility’s Activation of their Emergency Plan.” CMS Emergency Preparedness (EP) regulations require facilities to “conduct exercises to test the facility’s EP plan to ensure that it works and that staff are trained appropriately about their roles and the facility’s processes.” If the facility must activate its emergency plan, however, the regulations allow for a one-year exemption from the facility’s required full-scale testing exercise. As the COVID-19 public health emergency (PHE) continues, facilities that are still operating under their activated emergency plans may continue to be exempt from their next full-scale exercise. CMS provides examples of scenarios and guidance on how to comply in this surveyor memo. The agency does encourage facilities to continue conducting their individual facility-based exercises, if possible.

• Clarification on May Updates to NHSN COVID-19 Reporting
  As ASCA previously announced, the Centers for Disease Control and Prevention (CDC) recently announced changes to the Healthcare Personnel Safety (HPS) Component COVID-19 vaccination forms following the National Healthcare Safety Network (NHSN) May 2022 release. These changes impact data collection and reporting for ASC-20: COVID-19 Vaccination Coverage Among Health Care Personnel. Among the changes is the CDC’s revised definition of what it means to be “up to date” on vaccinations. To be considered as such, a healthcare worker who is eligible must have received at least one booster. However, ASCA has confirmed with the Centers for Medicare & Medicaid Services (CMS) that although the definition of “up to date” includes at least one booster, only data on an initial series, which was considered a complete vaccination course when the rule was published, will be made publicly available. In other words, although it is a mandatory field to report, booster data will not count against your vaccinated healthcare personnel totals.
• CMS Releases Updates to ASC Guidance for Surveyors
  As ASCA announced last week, the Centers for Medicare & Medicaid Services (CMS) released a surveyor memo that provides updates to the State Operations Manual (SOM) Appendix L - Guidance for Surveyors: Ambulatory Surgical Centers. CMS published multiple final rules over the past several years that amended the ASC Conditions for Coverage (CfC). This Advanced Copy of Appendix L makes conforming revisions to the regulatory tags and interpretive guidelines, as well as clarifications and technical corrections to other guidance areas based on stakeholder feedback. Please note that since this is an Advanced Copy, it is subject to change slightly before the final copy is posted to the online SOM.

Latest Marquette University Law Poll Shows Tight Races at the Top of the Ticket

The latest Marquette University Law Poll, which was released on June 22, shows that Wisconsin’s top political races – for governor and the U.S. Senate – are extremely close less than a month and a half from the primary and a little more than four months from the November general election.

In the Republican primary for governor, which will be held on Aug. 9, former Lt. Gov. Rebecca Kleefisch is in a dead heat with construction magnate Tim Michels. The poll results showed 27 percent of Republican respondents favored Michels, while 26 percent backed Kleefisch. Other GOP candidates did not break the 10 percent mark.

GOP Governor Primary:

• Michels – 27%
• Kleefisch – 26%
• Businessman Kevin Nicholson – 10%
• State. Rep Tim Ramthun – 3%
• Other or Undecided – 34%

The poll also showed that all GOP candidates trailed incumbent Wisconsin Governor Tony Evers (D) in projected head-to-head general election matchups:

• Evers: 47% — Kleefisch: 43%
• Evers: 48% — Michels: 41%
• Evers: 48% — Nicholson: 40%
• Evers: 51% — Ramthun: 34%

In the Democratic primary for U.S. Senate, the winner of which will face incumbent U.S. Senator Ron Johnson (R), current Lt. Gov. Mandela Barnes led the pack with 25 percent support from Democratic poll respondents. Milwaukee Bucks executive Alex Lasry came in at 21percent, while Wisconsin State Treasurer Sarah Godlewski received 9 percent support.

DEM U.S. Senate Primary:

• Barnes – 25%
• Lasry – 21%
• Godlewski – 9%
• Outagamie County Exec Tom Nelson – 7%
• Other or Undecided – 38%

In addition, the poll also showed Barnes, Godlewski, and Nelson all leading Sen. Johnson in potential general election matchups:

• Barnes: 46% — Johnson: 44%
• Godlewski: 45% — Johnson: 43%
• Nelson: 44% — Johnson: 43%
• Johnson: 45% — Lasry: 42%

WISCA Legislative Affairs Report:

WISCA Submits Public Comments on Proposed Medical Chaperone Rule

By Andrew Engel – WISCA Lobbyist (Hamilton Consulting)

As was previously reported by WISCA, the Wisconsin Medical Examining Board (MEB) is considering the creation of a new regulatory rule that would require a medical chaperone be present in an exam room whenever a physician is performing an examination or procedure that involves the breast, genitals, or rectal area of a patient. In addition, the proposed rule would consider these types of exams conducted without a chaperone as unprofessional conduct.

While the MEB did publish a revised proposed rule that allows for some flexibility in regards to what constitutes a chaperone, it still puts pressure on ASC’s to provide for a chaperone and track instances where they don’t.  Additionally, the “presumptive guilt” language still resides in the current iteration of the rule. The draft regulation was recently open for a 30-day public comment period as it relates to the economic impact of the rule. On June 8, WISCA submitted comments to the MEB expressing our concerns with the potential new regulation and the financial pressures it would cause. 

While we appreciate the Wisconsin Medical Examining Board’s overall goal of increasing patient safety and protecting patients from potential wrongdoing by unscrupulous actors, the current draft of the rule would cause undue hardship on Wisconsin’s 75 ASCs across the state, putting them in the tough position of either increasing costs or opening themselves up to increased liability. WISCA’s comments specifically calls attention to our belief that the rule would cost an average ASC around $80,000 a year. Please CLICK HERE to review WISCA’s full comments submitted to the MEB.

As the MEB continues to pursue the rule, there will be additional opportunities for public comment. WISCA will continue to closely monitor and engage on this important issue, as well as keep members updated on the latest developments.

by Maura Cash, RN, BSN, CASC | Jun 12, 2022 | EMR/EHR, HST eChart

Electronic health records (EHRs) are finally making themselves a must-have in the Ambulatory Surgery setting. However, convincing some physician owners of the value of this change is not always a walk in the park. We often encounter scenarios where clinical staff, business office managers, and other stakeholders are ready to switch from paper to electronic charting, but their owners are saying no. This information may help change their outlook.

Here’s a very high-level, step-by-step guide.

• Step 1: Gain a full-picture view of your physician owner’s concerns.
  Understanding where they’re coming from is going to be essential. What are their main concerns? More times than not, it comes down to cost, but are there other reasons? Take detailed notes to help you stay organized and focused.
• Step 2: Gauge internal interest.
  Discuss with your clinical team and others who would be using an EHR day in and day out. Are they on board as well? What concerns do they have? Do any of them have EHR experience?
• Step 3: Engage trusted EHR vendors to help you.
  The ASC industry has several different EHR options. They all vary slightly in terms of features and functionality, but what shouldn’t vary is their willingness to help you present your case to your physician owners.
• Step 4: Do your research and prepare a presentation.
  Now that you have a bulleted list of what’s holding them back, it’s time to create a clear and concise presentation addressing every concern. Speak their language and stay focused on everyone’s end goal – improving the bottom line, workflow efficiencies, and patient care.

Read more.