All legislators are watching the current redistricting case before the Court as it could change the boundaries and even the timelines of their next race for office.  As oral arguments begin the question is what happens if the Court does deem the maps unconstitutional.  No one knows for sure, but it is expected that there will be a mad dash to get new maps in place before the 2024 elections.  There are certainly hurdles to this, and while it is expected that the court will side with the plaintiffs challenging the maps, there are still more questions than answers at this point to how it will impact the legislative battleground moving forward. 

The legislature has finished work for the year having tackled several contentious issues in the final days of session.  Bills of interest included a plan to help the Milwaukee Brewers pay for maintenance on Am Fam Field in a deal designed to keep the Brewers in Milwaukee until at least 2050.  While the bill sailed through the State Assembly it ran into resistance in the State Senate.  There was bi-partisan support and opposition as some legislators believed it necessary for the state to help facilitate a deal to keep the Brewers from leaving while others argued that the taxpayers shouldn’t be on the hook for the upkeep on a stadium owned by the team.  The Senate passed the bill 19-14 with eleven republicans voting for it and eleven voting against.  The Governor promptly signed the legislation. 

Another bill that came to a head on the final session day of 2023 was an alcohol enforcement bill that had become contentious over the issue of “wedding barns”.  While the Assembly passed the bill by a 90-4 vote in June, the Senate as of November had not had a hearing on the bill.  The bill clarifies several issues related to alcohol sales, distribution and taxation, most of which were supported by the Wisconsin Department of Revenue.  However, one provision would change how Wisconsin’s growing wedding barn industry must classify themselves to serve alcohol, and the industry adamantly objected to the change.  Some legislators support their position, which stalled the bill. However, through a procedural play, Senate leadership brought the bill to the floor and it passed 21-11. The bill was signed into law by Governor Evers.

On November 2, CMS released the Medicare Physician Fee Schedule (MFPS) final rule. The rule finalizes a 2024 conversion factor of $32.74, a roughly 3.4 percent reduction from 2023. Notably, CMS finalized the implementation of a new g-code, G2211, beginning on January 1, 2024. This code was first proposed in the 2020 rulemaking cycle but has been delayed due to the Consolidated Appropriations Act of 2021. The code is contentious because it triggers a significant budget neutrality adjustment that is the main factor in the overall negative conversion factor reduction. CMS estimates that G2211 is driving 90 percent of the negative 2.2 percent budget neutrality adjustment. There will likely be a significant lobbying push from the physician community to oppose the implementation of the code before the end of the year. On November 6, ASCA was one of 54 health organizations that signed on to a letter (attached) to Congressional leadership opposing the implementation of G2211. ASCA also opposed implementation in comments responding to the CY 2024 MPFS proposed rule.

On Thursday, November 2, the Centers for Medicare & Medicaid Services (CMS) released its 2024 final payment rule for ASCs and hospital outpatient departments (HOPD).  Of note, CMS added multiple procedures to the ASC Covered Procedures List (ASC-CPL) that were not included in the proposed rule, including total shoulder arthroplasty, total ankle, and thyroid surgery. CMS increased the complexity and cost of total shoulder and ankle procedures by one APC group compared to total knee and hip procedures.

CMS finalized its proposal to continue to align the ASC update factor with the one used to update HOPD payments, extending the five-year interim period an additional two calendar years (CY) through 2025. ASCA advocated for this extension. The extension of this policy results in an effective update of 3.1 percent for ASCs—a combination of a 3.3 percent inflation update based on the hospital market basket and a productivity reduction of 0.2 percentage points mandated by the Affordable Care Act. This is an increase of 0.3 percent from the proposed rule. Please note that this is an average, and updates might vary significantly by code and specialty.

Other initial observations about the 1,672-page final rule follow. ASCA will provide additional analysis soon, including a rate calculator that allows users to determine what ASCs will be paid locally under this final rule.

• CMS adopted one new measure in this final rule, ASC-21: Risk-Standardized Patient Reported Outcome-Based Performance Measure (PRO-PM) Following Elective Primary Total Hip Arthroplasty (THA) and/or Total Knee Arthroplasty (TKA) in the ASC Setting (THA/TKA PRO-PM). The agency did push back mandatory reporting a year to the CY 2028 reporting period. Voluntary reporting begins with the CY 2026 and 2027 reporting periods.
• CMS did not finalize its proposal to readopt ASC-7: ASC Facility Volume Data on Selected ASC Surgical Procedures. ASCA raised concerns about this measure in its comment letter.
• CMS finalized the addition of 37 surgical procedures to the ASC-CPL, including the 26 dental codes that were included in the proposed rule. In addition, the agency finalized the addition of the following 11 surgical codes (short descriptor in parenthesis):

1.    21194 (Reconst lwr jaw w/graft)
2.    21195 (Reconst lwr jaw w/o fixation)
3.    23470 (Reconstruct shoulder joint)
4.    23472 (Reconstruct shoulder joint)
5.    27006 (Incision of hip tendons)
6.    27702 (Reconstruct ankle joint)
7.    29868 (Meniscal trnspl knee w/scpe)
8.    33289 (Tcat impl wrls p-art prs snr)
9.    37192 (Redo endovas vena cava filtr)
10.  60260 (Repeat thyroid surgery)
11.  C9734 (U/s trtmt, not leiomyomata)

ASCA staff will continue to analyze the final rule in detail and will provide more information to help ASC operators understand its impact on their centers soon.

The next data submission deadline for ASC-20: COVID-19 Vaccination Coverage Among Health Care Personnel is Wednesday, November 15, and covers the data collected in the second quarter of 2023, April 1 through June 30.

For ASC-20, facilities must select one week per month on which to report to meet the quarterly submission requirement. Please note that this Ambulatory Surgical Center Quality Reporting (ASCQR) Program measure is completely separate from the withdrawal of the federal vaccination requirement for healthcare personnel that the Centers for Medicare & Medicaid Services (CMS) announced in May. Your facility must continue to report on ASC-20 until CMS removes it from the ASCQR Program, or you will be subject to future Medicare payment penalties. As a reminder, CMS has proposed to keep this measure in the ASCQR Program for 2024. ASCA will continue to advocate for the removal of this measure.

The ASCQR Program provides a Web-Based Measure Status Listing that allows facilities to check their data submission status for web-based measures in the program. Enter your ASC’s NPI or CCN in the ASC Facility and CCN Lookup section to see your facility’s submission status. ASCs that fail to meet ASCQR Program requirements are subject to a 2 percent cut to their fee-for-service (FFS) Medicare reimbursements.

If you have questions, contact the ASCQR Program Support Contractor at 866.800.8756 or through the Quality Question and Answer Tool.

A rulemaking from the Wisconsin Medical Examining Board (MEB) on the use of “medical chaperones” has been completed. Originally, MEB proposed requiring providers to have a trained medical chaperone present during any sensitive physical examination, unless the patient refused the chaperone and agreed to waive certain claims.  WISCA provided written testimony to the MEB detailing how the proposed rule placed an undue burden on ASC’s. 

In addition to WISCA other provider groups voiced their opposition to the proposed rule prompting the MEB to significantly pare back its proposal. The final language essentially requires physicians and their employers to have a policy regarding medical chaperones and to make the policy readily available to affected patients. DSPS staff have stated that the policy could be as simple as stating that the facility does not offer chaperones. The final rule was adopted by the MEB during its August meeting after clearing gubernatorial and legislative review with no objections. It took effect on October 1.

The rule defines a “chaperone” as “an individual whom a physician requests to be present during a clinical examination that exposes the breasts, genitals, or rectal area, and who can serve as a witness to the examination taking place should there be any misunderstanding or concern for sexual misconduct.” The rule distinguishes chaperones from an “observer,” “an individual chosen by the patient to be present during an examination or inspection that exposes the breasts, genitals, or rectal area. A patient’s adult family member, legal guardian, or legal custodian is presumed to be able to act as an observer if the patient is twelve years of age or under.”

If you have questions about the rule please contact Andy Engel:  engel@hamilton-consulting.com 

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 federal government affairs news from ASCA:

• The House Energy & Commerce Health Subcommittee held a legislative hearing to discuss 23 bills and drafts that would reform how Medicare pays healthcare providers. There was a bipartisan consensus that physicians are paid inadequately to keep pace with inflation and rising practice expenses. They also mentioned how hospitals receive an annual inflationary update, but physicians do not. The discussion specifically touched on increased consolidation flaws with the Merit-Based Incentive Payment System (MIPS), alternative payment models, unworkable administrative burden and prior authorization, and the need for site-neutral payments. Unfortunately, the Committee did not consider the copay cap issue of our bill in time for this hearing.  Witnesses for the hearing included the Government Accountability Office (GAO), the Medicare Payment Advisory Commission (MedPAC), the American Academy of Family Physicians (AAFP), Texas Oncology, and other healthcare think tanks, which testified on reforming the Medicare Access and CHIP Reauthorization Act (MACRA) and ensuring that appropriate reimbursement for doctors occurs. Democrats acknowledged the importance of improving the healthcare physician reimbursement system but criticized bills without very much Democratic influence.
  
  
• ASCA expects the Centers for Medicare & Medicaid Services (CMS) to release the CY 2024 OPPS/ASC Final Rule next week. ASCA will send an initial alert on the day of the rule release and will follow up with additional information.
  
  
• On October 12, ASCA representatives met with Doug Jacobs, MD, chief transformation officer in the Center for Medicare at the Centers for Medicare & Medicaid Services (CMS). ASCA requested the meeting to discuss the 2024 proposed payment rule for ASCs and hospital outpatient departments (HOPD), which was released on July 13.
• • ASCA Chief Executive Officer Bill Prentice began the call by expressing disappointment with CMS’ lack of transparency regarding additions to the ASC Covered Procedures List (ASC-CPL). Although ASCA provided a list of 63 codes for procedures that are being performed safely in ASCs on non-Medicare populations to be added to the ASC-CPL, CMS added only one of the requested codes—G0330 (Facility svs dental rehab)—as part of a larger policy change that includes the proposed addition of 26 dental surgical codes. CMS provided no comment on the lack of inclusion of the other surgical codes ASCA proposed for addition to the ASC-CPL, which included total shoulder arthroplasty (TSA).
    
    
  • David Weinstein, MD, ASCA Board member and orthopedic surgeon with the Surgical Center of the Rockies in Colorado Springs, Colorado, joined the call to discuss TSA (CPT 23472). He expressed confusion as to why his colleagues performing total knee and hip arthroplasties are allowed to do so on the Medicare population while he is not allowed to perform TSA on the same population. Dr. Weinstein mentioned research indicating the stellar outcomes when TSA is performed in the outpatient setting, which is supported by his own experiences performing TSA in the ASC setting. According to CMS Physician/Supplier Procedure Summary (PSPS) data, there were 36,159 TSAs performed on Medicare fee-for-service (FFS) beneficiaries in HOPDs in 2021.
    
    
  • Since the final rule is due for release within the next two weeks, CMS staff is limited as to how much they can engage in dialogue at this time. However, the meeting allowed ASCA staff to introduce themselves to Dr. Jacobs and highlight some of their formal comments submitted in response to the proposed rule. Once the final rule is released in early November, ASCA will request a meeting to discuss 2025 rulemaking.

Earlier this month, the Senate Health Committee, which is controlled by Republicans, voted 5-1 to recommend to the full Senate the confirmation of Kirsten Johnson as Secretary of the WI Department of Health Services (DHS). Johnson has been serving as interim secretary since her appointment by Gov. Tony Evers in Feb. 2023. Prior to her appointment, Johnson served as the head of the City of Milwaukee Health Department, as well as the Washington-Ozaukee Health Department. Senator Andre Jacque (R-DePere) was the lone senator on the committee to oppose Johnson’s confirmation, which still needs approval by the full Senate. 

On September 26, the Legislature’s Joint Finance Committee rejected a request from the WI Department of Safety and Professional Services (DSPS) for additional funding for new staff members to assist in processing occupational credential applications. The 10-4 vote to reject the funding fell along party lines.  In its request, DSPS noted that they needed additional staff members to maintain or reduce processing time for occupational credentials.  As part of the 2023-2025 budget bill passed by the GOP-controlled Legislature, lawmakers approved 17 new positions at DSPS, as well as $3.5 million for software upgrades, to improve the credentialing process. 

Earlier this month, the Wisconsin Department of Administration (DOA) announced the state closed the 2023 fiscal year, which ended June 30, with a surplus of slightly more than $7 billion. That is roughly 65% more than last year’s $4.3 billion balance. In addition, the state Budget Stabilization Fund, or “rainy day” fund continues to have a balance of $1.8 billion.