Nebraska Changes Length of Stay Requirement
ASCA advocacy helps in updating the expected duration of services hours for ASCs in the state
BY STEPHEN ABRESCH | SEPTEMBER 2020
Come November 14, a revised length of stay requirement will take effect in Nebraska ASCs. Governor Peter Ricketts (R) signed LB 783 into law last month to make Nebraska the 29th state to successfully update its length of stay hours to match the Centers for Medicare & Medicaid Services’ (CMS) length of stay requirement for ASCs.
The measure extends Nebraska’s length of stay requirement for ASCs from the same working day to “within twenty-four hours after the introduction of anesthesia for persons for whom anesthesia is administered.” CMS’ length of stay requirement for ASCs states “the expected duration of services would not exceed 24 hours following an admission.”
The governor’s signature marked the end of an endeavor nearly four years in the making to modernize Nebraska’s length of stay requirements.
When Tracy Hoeft-Hoffman started as the administrator at the Heartland Surgery Center in Kearney, Nebraska, in December of 2016, she was given two goals, one of which was to get the center approved for patient stays of up to 24 hours. “That was easier said than done,” says Hoeft-Hoffman, because the state law stood in the way.
When Hoeft-Hoffman reached out to the Nebraska Department of Health & Human Services (DHHS) in 2017, she was told the center would require a separate healthcare clinic license which might not be approved. This was due to the state’s then-current definition of ASCs, enacted as part of the larger Health Care Facility Licensure Act in 2000, which required ASCs to discharge patients within the same working day and prohibited overnight stays.
Following this, Hoeft-Hoffman decided to try a different approach: securing a legislative fix. She reached out to Senator John Lowe (R) in November of 2018 and again in February of 2019 to start the conversation. As the 2020 legislative session approached, Hoeft-Hoffman’s efforts went into overdrive. She and the medical director of the center, David McConnell, MD, met with Lowe again in November of 2019 to educate him on the role of ASCs in the state and the need for a change. During the meeting they focused on the high quality of care and cost savings provided by ASCs, the movement of more procedures to the ASC payable list and the fact that CMS allows a longer length of stay in ASCs than the state did.
Partnering with ASCA, Hoeft-Hoffman also presented research detailing the length of stay requirements across the rest of the states and an early draft of what would become LB 783. A map assembled by ASCA visualizing the differing state requirements especially caught Lowe’s attention. “It was a real eye opener that we were one of the few states that didn’t allow overnight stays,” Hoeft-Hoffman says. “It was through educating Senator Lowe that he agreed it was a change that he would back.”
When Lowe introduced LB 783 on January 8, 2020, the bill was already facing difficulty behind the scenes. Hoeft-Hoffman knew the proposal would likely draw a challenge from the Nebraska Hospital Association (NHA) and had turned to the Nebraska Association of Independent Ambulatory Centers (NAIAC) to see if they would engage on the bill. While individual centers were interested, the association as a whole could not agree to engage, though they did agree to allow Hoeft-Hoffman to use their lobbyist. More information about potential opposition from hospitals also had come to light: a private hospital in Hoeft-Hoffman’s community was fiercely lobbying the NHA to oppose the measure. When the NHA opted to remain neutral, the private hospital made it clear it would independently testify in opposition. An intervention from surgeons working at both the private hospital and Heartland Surgery Center resolved matters and by early February the private hospital had agreed to not publicly oppose the bill.
By the end of January, the outlook had improved for the bill, with the Nebraska Medical Association (NMA) indicating support along with likely support from the Nebraska Association of Nurse Anesthetists (NANA) and the Nebraska Podiatric Medical Association (NPMA). When LB 783 was scheduled for a February 20 committee hearing, Hoeft-Hoffman immediately reached out to her colleague Maggie Summerfelt to help convince the committee to pass the bill. Hoeft-Hoffman also worked with the lobbyist and her network of ASC colleagues to identify administrators and physicians from around the state to testify in support of the measure.
The day of the hearing was a success: no testimony was submitted in opposition to the bill and the NMA, NANA and NPMA, along with the American College of Cardiology, all sent representatives to testify in support of the bill alongside the testimony from ASCs in the state. Lowe announced LB 783 was his “priority bill” for the year, a designation that each senator may make only once per session and one that allows the bill to be considered ahead of other bills during debate. What looked like a long shot in January now seemed to have a serious chance of making it to the governor’s desk. More good news arrived on March 6, when the lobbyist confirmed that the bill would advance out of committee as soon as they finished drafting an amendment. On March 12, the committee advanced LB 783 to the general file (first floor consideration) along with the amendment. Then the COVID-19 pandemic hit the country.
On March 16, Nebraska Speaker Jim Scheer announced that due to the pandemic, “… the current legislative session will not reconvene tomorrow and will be postponed until further notice.” It was unclear when, or even if, the legislature would be able to effectively reconvene its session and its work. Even under more normal circumstances, well supported legislation can fall by the wayside if a legislature is running short on time to address higher priority items like budgets. How would an interruption like the pandemic impact LB 783’s chances?
While the legislature announced in May it would return to finish the 2020 session between July 20 and August 13, it was not until July 23 that it was confirmed LB 783 would be brought up for same-day consideration on the general file. The final weeks of the session were a whirlwind. The Senate adopted the committee amendment and advanced the bill to the next procedural step by unanimous votes on July 23. After additional review, the bill was advanced to final reading in the senate on July 31. It passed the chamber by a unanimous vote on August 4 and reached the governor for consideration the same day. The governor signed the bill into law six days later.
Looking back, Hoeft-Hoffman credits her team’s success to teamwork. While she and McConnell did the initial legwork to get the bill introduced, it was contributions from other ASCs in the state, ASCA and the work of the lobbyist that helped get the bill across the finish line. “The bill was truly an example of being prepared to tell your story to the legislators in terms that they understood and having a well-respected senator to introduce the legislation,” Summerfelt says.
Write Stephen Abresch with any questions.