COVER: Advocacy Works


Advocacy Works

Over years, ASCA and its members have reduced burdens on ASCs

The ASC community celebrated its 50th anniversary last year and has much to be proud of over the course of its history. The past decade alone has been full of advocacy achievements. While ASCA focuses much of its efforts on payment policy, it is important to highlight some of the advocacy wins in the areas of quality reporting and survey and certification made possible with information and support from ASCA members.

“The ASC community celebrated its 50th anniversary last year, and has much to be proud of over the course of its history. The past decade alone has been full of advocacy achievements.”

Kara Newbury, ASCA

Quality Reporting

In 2006, the ASC community began encouraging the Centers for Medicare & Medicaid Services (CMS) to establish a uniform quality reporting system that would allow ASCs to publicly demonstrate their performance on quality measures. CMS listened and implemented the Ambulatory Surgical Center Quality Reporting (ASCQR) Program on October 1, 2012. The ASC Quality Collaboration (ASC QC) developed many of the measures that were part of the inaugural ASCQR Program, and the ASC community rallied around the program, with 98.9 percent of ASCs meeting quality reporting requirements in the first year of the program’s implementation.

Cataract Measures
Although supportive of the ASCQR Program, ASCA has pushed back when onerous provisions have been proposed. For example, ASCA opposed the addition of two cataract measures that CMS proposed adding in 2014: Cataracts: Complications within 30 Days Following Cataract Surgery Requiring Additional Surgical Procedures and ASC-11: Cataracts: Improvement in Patient’s Visual Function within 90 Days Following Cataract Surgery.

While the complications within 30 days following surgery measure was not finalized, CMS did finalize ASC-11 and implementation was set to begin in 2014. ASCA staff worked closely with a coalition of representatives from ophthalmic specialty societies to influence CMS and raise awareness in Congress. At first, mandatory reporting was delayed until January 1, 2015, and eventually the measure was made voluntary, so reporting has never been required for ASC-11.

Since the initial development of the Consumer Assessment of Healthcare Providers and Systems Outpatient and Ambulatory Surgery Survey (OAS CAHPS) and the five quality measures based on it, ASCA has raised concerns with the administrative burdens associated with the survey. In the 2017 final rule, CMS finalized these measures beginning with 2018 data collection, mandating that facilities have 300 completed surveys from patients to meet the reporting requirements. After the 2017 final rule, ASCA ramped up its advocacy, pushing for a delay of mandatory implementation of the survey until it is shortened and an electronic option is available. Both developments would significantly reduce the cost and administrative burden to ASCs and make the survey easier for their patients to complete.

In the 2018 rulemaking cycle, CMS delayed the mandatory implementation of OAS CAHPS, and this delay has continued while CMS tests an electronic option and discusses other proposed changes. ASCA expects CMS to revisit mandatory adoption of OAS CAHPS in the 2022 proposed rule. At press time, the proposed rule had not yet been released, but ASCA’s website will contain more information as it becomes available.

Advocacy Works

Survey and Certification

Over the years, ASCA has worked closely with CMS staff responsible for ASC survey and certification. ASCA strongly supports CMS standards that ensure ASCs are providing safe and high-quality care, but over the years, ASCA has advocated for changes to requirements that were viewed as unnecessary or overly burdensome.

Same-Day Surgery Notifications
Prior to the fall of 2011, notification of patients’ rights and ASC physician financial interests were required to be provided to patients before the day of surgery. This resulted in an undue burden for ASCs attempting to schedule a surgery the same day the referral is made. CMS agreed with ASCA, and as of December 23, 2011, ASCs are considered to be in compliance with this requirement if the notifications are provided the same day as surgery as long as they are delivered prior to the surgery.

Emergency Equipment
In May 2012, CMS announced it would no longer mandate a specific list of emergency equipment in ASCs. Instead, an ASC’s governing body and medical staff would have the flexibility to determine which emergency equipment would be necessary to best safeguard the safety of the patients the ASC serves. In making the change, CMS echoed the concerns ASCA had expressed to the agency, noting that it had “learned from the ASC community that some of these equipment requirements are outdated, while other equipment requirements would not be applicable to the emergency needs of all ASCs.”

Radiologist on Staff
In May 2014, CMS announced it was removing the provision in the Conditions for Coverage (CfCs) requiring ASCs to have a radiologist on their medical staff. ASCA had long advocated for this change noting that requiring ASCs to have a radiologist on staff does not make sense given that radiologic services in an ASC are generally limited to intraoperative guidance that does not require interpretation by a radiologist. Additionally, ASCs had reported difficulty finding radiologists willing to be part of their medical staff.

Instead of requiring a radiologist on staff, the new language, found at §416.49(b)(2), states: “If radiologic services are utilized, the governing body must appoint an individual qualified in accordance with State law and ASC policies who is responsible for assuring that all radiologic services are provided in accordance with the requirements of this section.”

ASCA member input was instrumental in securing this change to the regulation.

Physician Discharge
Prior to 2015, ASCA often heard from members that the CMS State Operations Manual, Appendix L: Guidance for Surveyors: Ambulatory Surgical Centers—commonly referred to as the “Interpretive Guidelines”—guidance on physician discharge was unduly burdensome. The guidance indicated that the patient was expected to leave the facility within 15–30 minutes of the time the discharge order was signed by the physician who performed the surgery or procedure. Physicians were often forced to return to the ASC long after the surgery was over to sign the discharge order. ASCA argued that physicians should be allowed to specify that a patient be released when stable and not be required to adhere to a specific timeframe. In 2015, CMS updated the Interpretive Guidelines to clarify that it is permissible for the operating physician to write a discharge order indicating the patient may be discharged when stable, even if that is past the 15- to 30-minute window.

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Emergency Preparedness
In September 2016, CMS released its final rule on Emergency Preparedness Requirements for Medicare and Medicaid Participating Providers and Suppliers. This final rule established national emergency preparedness requirements for Medicare providers and suppliers to plan for both natural and man-made disasters and coordinate with federal, state, tribal, regional and local emergency preparedness systems. ASCA submitted comments on the proposed rule based on ASCA member input and achieved several changes in the final rule.

ASCA expressed concerns with proposed mandates to provide occupancy information and subsistence for patients and staff, as these were not applicable to ASCs. CMS agreed and in the final rule, exempted ASCs from providing occupancy information since the term “occupancy” usually refers to an inpatient facility. ASCs also were exempted from the hospital requirement to have adequate subsistence on hand for patients and staff in case of emergency.

Emergency Plan: 42 CFR § 416.54(a)
The final rule required ASCs to develop an emergency plan based on risk assessment using an all-hazards approach and update their emergency plan annually. ASCA expressed concern about a provision in the proposed rule requiring that ASCs work with community emergency preparedness officials, as many communities do not want to include ASCs in their emergency preparedness efforts. ASCA recommended that CMS accept written documentation of the ASC’s attempts to cooperate and collaborate with community organizations, even if the community organizations never respond.

CMS agreed and now considers ASCs to be in compliance with this requirement if the facility documents its efforts to contact pertinent emergency preparedness officials and, when applicable, participates in community-based exercises.

As part of a larger burden reduction initiative in 2019, CMS removed the documentation requirement, although ASCs are still required to contact the emergency preparedness officials and offer to participate in community-based exercises.

Advocacy Works

Policies and Procedures: 42 CFR § 416.54(b)
CMS proposed that ASCs develop arrangements with other ASCs and providers to receive patients in the event of limitations on or the cessation of operations to ensure the continuity of services to ASC patients. ASCA noted that in the case of an emergency, an ASC would cancel upcoming procedures for that day, stabilize any patients already in the facility and transfer patients to a higher level of care, if needed. The ASC would also ensure that all ASC staff and volunteers were accounted for and could either shelter in place or return home safely. CMS withdrew this entire proposed requirement and acknowledged that ASCs were highly specialized and transferring patients was not applicable.

Communication Plan: 42 CFR § 416.54(c)
ASCs are required to develop a communication plan, and as part of this communication plan, CMS proposed requiring ASCs to track staff and patients after an emergency. ASCA expressed concern with the proposal to require ASCs to keep track of patients once they leave the facility. CMS agreed and withdrew this proposal.

Training and Testing: 42 CFR § 416.54(d)
ASCs are required to develop and maintain training and testing programs, including a community-based drill. Listening to ASCA concerns, CMS stated that if a community disaster drill were not available, the ASC could instead conduct an individual facility-based disaster drill. ASCA remained concerned about the additional burden and cost two tests would have on ASCs and advocated for CMS to reduce this burden. In the 2019 burden reduction rule, CMS changed the requirement from two tests to one annually.

Transfer Agreements with Hospitals
In 2014, ASCA began hearing from some of its members that hospitals were refusing, strictly for competitive reasons, to enter into transfer agreements with them, a requirement for ASCs seeking Medicare certification. ASCA reached out to the US Department of Justice and the Federal Trade Commission and determined that trying to get reprieve from this requirement through the CMS CfCs would be the best bet.

Finally, in September 2018, CMS proposed to remove the requirements at 42 CFR 416.41(b)(3), “Standard: Hospitalization” for an ASC to have a written transfer agreement or hospital admitting privileges for all physicians who practice within the ASC. According to CMS, this was meant, in part, “to address the competition barriers that currently exist in some situations where hospitals providing outpatient surgical services refuse to sign written transfer agreements or grant admitting privileges to physicians performing surgery in an ASC.”

In the final rule released in 2019, CMS finalized the revisions to § 416.41(b)(3). It added, however, a requirement that ASCs periodically provide the local hospital with written notice of its operation and patient population served.

This is just a handful of the areas where ASCA’s advocacy efforts, launched based on member feedback and conducted with member support, have led to valuable changes that help ASCs improve their patient care and patient access to that care. That work, of course, is not over. Have suggestions for advocacy initiatives? Write Kara Newbury.