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February State Bills in Motion

Cardiology, CON and surgical smoke evacuation legislation continue to be in focus

BY STEPHEN ABRESCH | FEBRUARY 2020

The end of February officially marks the shift away from introduction of high volumes of new bills in the states to consideration of these proposals. With all but Arkansas, Louisiana and North Carolina having started their sessions by the end of February, March will bring more committee hearings, amendments and floor votes as the states work through the thousands of bills that have been introduced since the start of the year. February itself contributed heavily to the number of bills vying for consideration with a few new and interesting pieces of legislation introduced.

The long-awaited percutaneous coronary intervention (PCI) bill was finally introduced in California at the end of the month, making it only the second state after Michigan to take up the issue legislatively. The measure, the result of extensive work by the California Ambulatory Surgery Association (CASA) and other stakeholders, would allow ASCs in the state to receive certification to begin performing scheduled, elective percutaneous transluminal coronary angioplasty and stent placement for eligible patients. Following the addition of such procedures to Medicare’s ASC covered procedure list last year, ASCA had expected to see more states grapple with state-level legal obstacles preventing ASCs from performing the procedures, but so far only two states have active legislation on the issue. Due to California’s use of a “cooling period” for newly introduced bills, this measure won’t be eligible for consideration in committee until the end of March.

States have continued introducing legislation to do away with their certificate of need (CON) programs but have shown less interest in actually considering these measures in committee. West Virginia introduced an additional bill that would eliminate its CON program—the state introduced the first measure of this type in early January—while Alabama, Michigan and Mississippi all introduced new legislation that would accomplish the same. As of the end of February, 10 states—Alabama, Alaska, Kentucky, Michigan, Missouri, Mississippi, North Carolina, South Carolina, Tennessee and West Virginia—have active legislation that would do away with their CON programs, though not a single one of these bills has been heard in committee yet.

New surgical smoke evacuation legislation continued to pop up in February, with a new introduction in Utah at the start of the month and in Illinois in the middle of the month. As of the end of February, seven states—Georgia, Illinois, Iowa, Kentucky, Oregon, Tennessee and Utah—have active legislation on the topic, with an introduction in New Jersey expected in the future. Besides the new introductions, at least one state has begun moving these measures: the Kentucky Senate passed its bill (SB 91) out of the chamber on February 18.

ASCA spoke with the Association of periOperative Registered Nurses' (AORN) government affairs team about its advocacy efforts on the smoke evacuation issue. While AORN is adamant about continuing its push, the organization was receptive to ASCA’s requests that it increases its outreach efforts to ASCA members and the state associations and do as much as possible to accommodate their concerns about the legislation. AORN agreed to engage and work with ASCs in the states where these bills are being pushed.

February still is early budget season at the state level and one big development came out of Connecticut this month: a budget implementer of Governor Ned Lamont would remove the existing tax exemption for the first $1 million of revenue from facility services at ASCs. No stranger to problematic tax proposals, the Connecticut Association of Ambulatory Surgery Centers (CAASC) has already leapt into action and is working closely with a state senator to defeat the proposal.

New York budget negotiations remain in their early stages and, while the governor’s proposals for a fee increase on hospital and ASC new facility construction CONs were amended in committee this month, these provisions remain in the bills and the bills remain in committee, awaiting further hearings and amendments.

While many bills are just now starting out on their legislative journey, certain noteworthy measures approached the end of the line this month. Legislation in Virginia that requires the state health commissioner to consider the impact of proposed healthcare facility projects on a broader population when determining whether to issue a CON passed the second chamber. The bill now waits transmittal to Governor Ralph Northam’s office for consideration. A two-bill package in Michigan that exempts prosthetic devices from the state sales and use tax—imposed on purchases made outside the state that will be used, stored or consumed within the state—was sent to Governor Gretchen Whitmer at the end of the month for consideration. Legislation in Nebraska that would require the registration and licensure of surgical technicians was defeated on the floor of the unicameral body. And finally, the New Mexico Legislature adjourned sine die on February 20, marking the end of new legislations out of that state this year.

For more information or questions on state legislative and regulatory activities, write Stephen Abresch, ASCA’s associate director of Government Affairs, State Affairs.