CMS Changes to Payable Lists Causes Confusion

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CMS Changes to Payable Lists Causes Confusion

ASCA continues to advocate for increased Medicare beneficiaries’ access to outpatient surgical care

The Centers for Medicare & Medicaid Services (CMS) made significant changes to the surgical codes that can be performed in hospital outpatient departments (HOPD) and ASCs in the calendar year (CY) 2021 Outpatient Prospective Payment System (OPPS)/ASC final payment rule. Between the announced elimination of the inpatient-only (IPO) list and hundreds of codes being added to the ASC Covered Procedures List (ASC-CPL), confusion runs high regarding the setting where procedures can be performed now and in the future.

Background on the Elimination of the IPO List Under OPPS: The CY 2000 OPPS final rule established the IPO list. In that rule, the agency relied on the broad authority given to it under section 1833(t)(1)(B)(i) to specify criteria to designate services that require inpatient care. The agency indicated that the list may change and acknowledged that advances in technology and medical practice would impact the necessity and value of the IPO list.

In the CY 2021 OPPS/ASC final rule, the agency announced that the IPO list would be phased out over a three-year period, with the list entirely eliminated by January 1, 2024. In the first phase, 266 musculoskeletal-related services were removed from the IPO list. In 2020, there were approximately 1,740 services on the IPO list, leaving 1,474 to be removed.

Throughout the final rule, CMS reiterated that removing codes from the IPO list does not mean the services must be performed in an HOPD. The agency asserted that physicians are best suited to consider a beneficiary’s specific needs and should be free to apply their clinical knowledge and judgment in determining where a procedure is performed.

The stated overarching rationale for the elimination of the IPO list was to maximize access to outpatient surgical care. However, this change does not allow for these procedures to be performed in the ASC setting. In fact, a change to the ASC Code of Federal Regulations (CFR) section in the rule specifies that codes that were on the inpatient-only list as of December 31, 2020, are ineligible from consideration on the ASC-CPL, impeding the ability of surgery to move outpatient. The rule’s stated intent does not currently align with its practical application.

ASC-CPL Changes and Interplay with IPO List: Over the past few years, recognizing that many procedures that were previously performed only inpatient are now being performed safely and effectively in the ASC setting on the non-Medicare population, the agency has added procedures to the ASC-CPL that were recently on the IPO list, such as total knee arthroplasty and total hip arthroplasty. It has typically been a multi-year process, with codes first being removed from the IPO list and allowed in the HOPD setting, and then considered for addition to the ASC-CPL a year or more after being allowed in HOPDs.

In the CY 2021 rule, the agency found that allowing greater flexibility for physicians and patients to choose ASCs as the site of care, particularly during and after the pandemic, would help to alleviate access to care concerns for elective procedures. The agency revised the criteria used to set the ASC-CPL, moving many of the old criteria previously used to exclude codes from consideration to a new CFR section, §416.166 (d) Physician considerations beginning January 1, 2021, allowing a physician to determine the appropriate site of service on an individual basis rather than CMS excluding all Medicare beneficiaries. In doing so, the agency added 267 surgery and surgery-like codes to the ASC-CPL. Beginning January 1, 2021, if CMS determines that a surgical procedure meets these four requirements, it can be considered for addition to the ASC-CPL:

  1. Separately paid under the OPPS;
  2. not designated as requiring inpatient care under § 419.22(n) [The IPO List] as of December 31, 2020;
  3. not only able to be reported using a CPT unlisted surgical procedure code; or
  4. not otherwise excluded under § 411.15 [Specifying services excluded from coverage].

The IPO list language was presumably amended as a safeguard to ensure procedures were not immediately added to the ASC-CPL. However, as worded, it effectively freezes the universe of procedures eligible to be moved to the ASC-CPL to those that were payable under OPPS in 2020. This will keep codes such as total shoulder arthroplasty and spine codes that are already being done on other patient populations in the ASC setting from being added to the ASC-CPL, as they were on the IPO list in 2020. ASCA highlighted this problem in its 2021 comment letter, but the language was finalized as written. We are working with CMS to remove this language as soon as possible, maximizing Medicare beneficiaries’ access to outpatient surgical care.