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Pennsylvania Enacts Major Update to Allowable Procedures in ASCs

New law lifts years-old, site-related restrictions

BY STEPHEN ABRESCH | AUGUST 2022

Beginning September 9, ASCs in Pennsylvania will not be required to submit waivers to perform common procedures routinely performed in ASCs in other states, such as total joint procedures, laparoscopic procedures, laparoscopic cholecystectomy procedures, and dialysis and vascular access procedures. Under a new law, SB 818, surgery centers in the state will now be able to “perform surgical procedures permitted under federal or state law or regulation and surgical procedures specified on the ASC-CPL on the effective date of this section that do not otherwise conflict with state regulations.” Additionally, Pennsylvania ASCs can now request procedures not on the 2022 ASC Covered Procedures List (ASC-CPL) or otherwise prohibited by state law through an updated waiver process created in the new law. One example of a code that ASCs may request is total shoulder arthroplasty, which is being done on non-Medicare patients throughout the country but is not yet included on Medicare’s ASC-CPL. Lastly, ASCs in the state can now perform cardiac catheterization procedures that were added to Medicare’s ASC-CPL in recent years. Pennsylvania becomes the third state—following Mississippi and Michigan—to overturn an outright prohibition on these cardiology procedures in the ASC setting.

Pennsylvania Governor Tom Wolf signed SB 818 into law on July 11. The measure represents a major update to Pennsylvania’s laws governing allowable procedures at ASCs and is the result of a years-long effort by the Pennsylvania Ambulatory Surgery Association (PASA) to address outdated laws that prevented facilities in the state from performing many common procedures.

Background

Pennsylvania’s regulations establishing the criteria for ambulatory surgery were adopted in 1999, and while the General Assembly updated the length of stay requirements in 2017, the requirements have remained the same since that time. While the Centers for Medicare & Medicaid Services’ (CMS) Conditions for Coverage includes some of the requirements, such as restricting ASCs from performing procedures associated with the risk of extensive blood loss, the Pennsylvania Department of Health’s interpretation of the regulations reflected a dated understanding of procedures that were appropriate for the ambulatory setting. Facilities in the state were required to submit waivers to perform common procedures routinely performed in ASCs in other states: waivers listed on the state health department’s website include forms for total joint procedures, laparoscopic procedures, laparoscopic cholecystectomy procedures, and dialysis and vascular access procedures. And while the waiver process provided a path to performing these procedures, it was time-consuming, reportedly taking as long as two years to complete.

In October 2019, PASA started talking to the state health department about the state’s ASC regulations governing allowable procedures and worked with ASCA to provide the department with research showing how restrictive Pennsylvania’s laws were compared to other states in the region. Unfortunately, the COVID-19 pandemic interrupted the initial push, as the state government, General Assembly and PASA itself shifted their focus to responding to the public health emergency.

PASA took the issue back up a year later, in October 2020, working to educate the state health department and elected officials about how the current laws placed unnecessary restrictions and burdens on ASCs in the state. By the start of 2021, these early educational efforts had paid off as PASA began working with the office of state Senator Judy Ward (R) to craft a legislative fix to the issue. PASA partnered with ASCA again to provide the senator with research showing how Pennsylvania’s laws were more restrictive than other states. The organization continued working with Ward on the issue through the end of the year, and by March 2021 Ward had released a cosponsorship memo indicating she would soon introduce legislation to align the state’s requirements surrounding allowable procedures in ASCs with what CMS allows.

Four months after the release of the cosponsorship memo, Ward introduced SB 818 on July 26, 2021, and the measure passed the Senate on January 18, 2022 with an amendment. PASA negotiated an amendment in the House that would ensure enactment. After the measure was amended and passed out of its House committee in April, PASA worked with the state health department, the House and Senate counsels and committee staff in the House to address lingering concerns while still updating the procedures ASCs can perform in the state. All parties were able to come to an agreement, and on June 29, passed the bill. The Senate concurred in the amendment on July 7 and sent the bill to the governor who signed it into law on July 11.

Write Stephen Abresch with questions.