CMS Releases Supporting Information on Prior Authorization Demonstration Project

The Centers for Medicare & Medicaid Services (CMS) recently released Supporting Statement Part B, which provides more information on the proposed prior authorization demonstration project for ASCs. The supporting information includes the states impacted, which are: Arizona, California, Florida, Georgia, Maryland, New York, Ohio, Pennsylvania, Tennessee and Texas. It also includes the specific codes that would be subject to the demonstration, which fall within the following categories:

• Blepharoplasty, Blepharoptosis Repair, and Brow Ptosis Repair
• Botulinum Toxin Injection
• Panniculectomy, Excision of Excess Skin and Subcutaneous Tissue (Including Lipectomy), and related services
• Rhinoplasty, and related services
• Vein Ablation, and related services

As ASCA reported last week, CMS announced that it “seeks to develop and implement a Medicare demonstration project, which CMS believes will assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring in ambulatory surgical centers providing services to Medicare beneficiaries.” ASC providers would have to submit documentation to their Medicare Administrative Contractors (MAC) that shows a service meets applicable Medicare coverage, coding, and payment rules prior to rendering the service.

ASCA staff reached out to the contact on the demonstration notice to ask who the responsibility falls on since the notice refers several times to “ASC providers.” The email ASCA received in response states, “The physician needs to submit the prior authorization request or materials requested by the MAC for preclaim review and that drives the process.”

ASCA Submits Codes for Consideration for Addition to ASC-CPL

ASCA submitted codes by the March 1 deadline in response to the ASC Covered Procedures List (ASC-CPL) Pre-Proposed Rule Recommendation Request. This is a new way to submit codes for consideration that the Centers for Medicare & Medicaid Services (CMS) rolled out this year. Based on feedback from members, including our new cardiovascular working group, ASCA submitted the following:

a.       Cardiovascular codes: Electrophysiology Studies and Ablations: 93613, 93619, 93620, 93623, 93650, 93653, 93654, 93655, 93656, and 93657 Peripheral Vascular – Diagnostic: 75630, 75710, 75716, and 75736 Cardioversion and TransEsophageal Echocardiogram: 92960 and 93355

b.       Spine codes: (Posterior Lumbar Inter-body Fusion (22630) and Combined Posterior Lumbar and Posterior Lumbar Inter-body Fusion (22633)

Federal Legislative Update

After meeting with participants during National Advocacy Day, Representatives Joe Wilson (R-SC), Kevin Kiley (R-CA), Tracey Mann (R-KS) and Jefferson Van Drew (R-NJ) joined the Outpatient Surgery Quality and Access Act of 2023 as cosponsors. A full list of cosponsors is available for the US House of Representatives and Senate. You can help gain further support for the bill by using ASCA’s template letter to reach out to your lawmakers and ask them to sign on to the bill as a cosponsor. Thank you to everyone who participated in this year’s fly-in and for garnering more ASC supporters in Congress!

Change Healthcare Cybersecurity Issue Resources

On March 5, the US Department of Health & Human Services (HHS) released a statement regarding the Change Healthcare cybersecurity attack, which included some flexibilities available to impacted healthcare providers. Of note, the Centers for Medicare & Medicaid Services (CMS) has authorized accelerated payments, similar to what was available during the COVID-19 public health emergency.

In the statement, HHS indicates that “during outages arising from this event — facilities may submit accelerated payment requests to their respective servicing MACs for individual consideration. We are working to provide additional information to the MACs about the specific items and information a provider’s request should contain. Specific information will be available from the MACs later this week.”

ASCA has created a page with tools to help ASCs respond to cybersecurity issues and information regarding the Change Healthcare cybersecurity attack.

In a final twist to the legislative redistricting process the Governor and Legislature came to an agreement on new maps, avoiding the alternative pathway which would’ve seen the State Supreme Court draw the maps.

The new agreed upon maps may have struck the right chord because they left both republicans and democrats complaining about the final result. While we won’t know the true impact of the new maps it is pretty clear that the republican majorities (22-11 in the Senate, 64-35 in the Assembly) will compress, and with that we expect to see at least 25% of the legislature turnover resulting in new faces.

In the Assembly, republicans will still maintain an overall structural electoral advantage and should hold the majority in most years. That said, their majority will shrink and it is possible democrats could flip it in a blue wave type year.

The Senate appears to be even more competitive with either side being able to win a majority, but because Senators run on staggered four year terms, there isn’t a plausible scenario where democrats could gain the majority in 2024. There is however a chance it could be done in 2026 depending on how close things tighten up after the 2024 elections. Senate democrats haven’t held the majority in the Senate since the 2009-2010 session.

Regardless of control, both houses will face the new challenge of passing legislation through narrow majorities. Since 2011, republicans have continuously increased majorities resulting in sessions where they have rarely needed to compromise with democrats to pass things like the budget. Whether the narrow majorities lead to more compromise or greater gridlock has yet to be seen and will be the story of the upcoming session.

If you’re wondering if you are now in a new legislative district you can go to this link: www.legis.state.wi.us and type in your address under “who are my legislators”.

For multiple sessions now Wisconsin nurses have been trying to push across the finish line a bill that would provide an advanced practice registered nurse credential (APRN bill). The bill passed both houses last session and this session but was ultimately vetoed by the Governor both times as disagreement over the proposed policy remains with both the Wisconsin Medical Society and Wisconsin Society of Anesthesiologists arguing against certain provisions in the bill. On behalf of ASC’s, WISCA lobbied against a proposed amendment that would’ve resulted in a restriction on collaborative agreements with nurse anesthetist. This provision was ultimately was not included in the final package. There is expectation that the bill will resurface again. The Governor also vetoed a bill that would’ve required DSPS to issue a temporary license to certain health care prospective employees provided their initial coursework and paperwork were submitted. The idea behind the bill was to move potential health care workers more quickly into the workforce. The Governor objected to the bill citing concern over background checks that wouldn’t be completed prior to people entering the workforce and referenced patient safety as a reason for vetoing the bill. 

The State Senate convened for the final time this year on March 12th, effectively concluding the legislature’s 2023-24 bi-annual session. While its possible the legislature could reconvene under certain circumstances, like a veto override attempt, all bills that didn’t pass both houses on the 12th are effectively dead.

While the redistricting process loomed in the background of the entire session, a number of high profile issues were dealt with along the way. The legislature did pass a huge per-pupil spending increase for all schools. They also passed a shared revenue plan that provides money to local governments, that bill allowed Milwaukee County and City to increase their sales tax, an allowance they’ve been requesting for years. There was a bi-partisan spending package that provided support to the Milwaukee Brewers for Am-Fam field upkeep and another bi-partisan bill that overhauled alcohol enforcement policy in the state. The Governor and legislature also found compromise on a bill that provided funding to the University of Wisconsin for an Engineering bill while at the same time eliminated Diversity, Equity and Inclusion positions.

Unfortunately, it was the areas where they couldn’t find compromise that languished and will have to be brought back another day. Most of it surrounded the $3 billion surplus that the state is sitting on. Republicans in the legislature passed multiple tax cuts that the Governor vetoed. The Governor also advocated strongly for increased funding for childcare. While some thought they could do both in one bill, compromise eluded them. Assuming the surplus is still intact going into next session it should be expected we’ll see another version of tax cuts vs. childcare increases round 2. The Governor and Legislature failed to find compromise on PFAS funding, as well as funding for health care in western Wisconsin. A medical marijuana proposal also failed to gain enough support to move.

Click here to access the Change Cyber Response Resources

In response to active exploitation of a cybersecurity vulnerability, the Cybersecurity and Infrastructure Security Agency (CISA), the Federal Bureau of Investigation (FBI), and the Department of Health and Human Services (HHS) released an update to the joint advisory #StopRansomware: ALPHV Blackcat to provide new indicators of compromise (IOCs) and tactics, techniques, and procedures (TTPs) associated with the ALPHV Blackcat ransomware as a service (RaaS). ALPHV Blackcat affiliates have been observed primarily targeting the healthcare sector.

Please make sure the attached message is seen and acted upon by the appropriate members of your organization, such as the IT department. We encourage those with networks to distribute this message to your networks.

The 2023-24 legislative has come to an end, and legislators are shifting their focus to the upcoming election season and the need to connect with voters. With that in mind, it is more important than ever for WISCA members to strengthen their relationships with their state lawmakers (and new legislative candidates) to educate them on the ASC model of care, the regulatory challenges we face, and the legislative solutions we need to increase access to affordable, quality care provided in the ASC setting. Remember, decisions state legislators make in the Capitol can have a significant impact on the ASC industry, your organization, and your profession.

One of the best ways you as a WISCA member can engage your local legislators is to invite them to tour your ASCs to illustrate firsthand the many benefits of surgery center care. These visits provide a tremendous advocacy opportunity, which is why WISCA members across the state have already hosted numerous successful legislative tours. But we need to maintain the enthusiasm for this critical grassroots advocacy program, and WISCA is excited and ready to set-up additional tours today.

If you would like to host a legislative tour at your site, please contact the WISCA office at WISCA@badgerbay.co. We will work with you and your legislators to coordinate the meetings and will provide participating members with full support, including legislator bios, advocacy tips, issue briefings, and supporting documents.

WISCA works closely with our national association partner – the Ambulatory Surgery Center Association (ASCA) – on advocacy and other issues important to our members. In fact, the WISCA Government Affairs Team joins a national ASCA state chapter call twice a month for a federal regulatory and legislative briefing and closely follows their published Government Affairs Updates. Here is the latest federal government affairs news from ASCA:

• CMS Releases Supporting Information on Prior Authorization Demonstration Project
  As previously reported by ASCA, the Centers for Medicare & Medicaid Services (CMS) recently announced that it “seeks to develop and implement a Medicare demonstration project, which CMS believes will assist in developing improved procedures for the identification, investigation, and prosecution of Medicare fraud occurring in ambulatory surgical centers providing services to Medicare beneficiaries.” Under pilot program, ASC providers would have to submit documentation to their Medicare Administrative Contractors (MAC) that shows a service meets applicable Medicare coverage, coding, and payment rules prior to rendering the service.
  CMS has now released Supporting Statement Part B, which provides more information on the proposed prior authorization demonstration project for ASCs. The supporting information includes the states impacted, which are: Arizona, California, Florida, Georgia, Maryland, New York, Ohio, Pennsylvania, Tennessee and Texas. It also includes the specific codes that would be subject to the demonstration, which fall within the following categories:
  
  1. Blepharoplasty, Blepharoptosis Repair, and Brow Ptosis Repair
  2. Botulinum Toxin Injection
  3. Panniculectomy, Excision of Excess Skin and Subcutaneous Tissue (Including Lipectomy), and related services
  4. Rhinoplasty, and related services
  5. Vein Ablation, and related services
  
  ASCA staff reached out to the contact on the demonstration notice to ask who the responsibility falls on since the notice refers several times to “ASC providers.” The email ASCA received in response states, “The physician needs to submit the prior authorization request or materials requested by the MAC for preclaim review and that drives the process.”
  
  
• ASCA Submits Codes for Consideration for Addition to ASC-CPL
  ASCA submitted codes by the March 1 deadline in response to the ASC Covered Procedures List (ASC-CPL) Pre-Proposed Rule Recommendation Request. This is a new way to submit codes for consideration that the Centers for Medicare & Medicaid Services (CMS) rolled out this year. Based on feedback from members, including our new cardiovascular working group, ASCA submitted the following:
  1. Cardiovascular codes: Electrophysiology Studies and Ablations: 93613, 93619, 93620, 93623, 93650, 93653, 93654, 93655, 93656, and 93657 Peripheral Vascular – Diagnostic: 75630, 75710, 75716, and 75736 Cardioversion and TransEsophageal Echocardiogram: 92960 and 93355
  2. Spine codes: (Posterior Lumbar Inter-body Fusion (22630) and Combined Posterior Lumbar and Posterior Lumbar Inter-body Fusion (22633)

It’s been nearly a year since Janet Protasiewicz was elected to the Wisconsin Supreme Court flipping it from a 4-3 conservative court to a 4-3 liberal court. Since that time there has been constant speculation as to what that result would mean for Wisconsin’s legislative district boundaries and a potential new redistricting process. It appears that we now know the answer. In late December, the Court found that the lines as constructed resulted in an unconstitutional partisan gerrymander and requested from the legislature and Governor that they present them with new maps that better fit their definition of “fair” maps.

The maps in question currently yield a 22-11 majority for republicans in the state senate and a 64-35 majority for republicans in the assembly. Nearly two-thirds of all legislators are republican even though democrats have won fourteen of the last seventeen statewide elections. Democrats have said that the districts are gerrymandered and should be redrawn to better reflect Wisconsin’s electorate.

Republicans have countered that the maps were constructed in accordance with the law and that Wisconsin’s population makes it such that democrats are more concentrated in certain areas of the state which gives republicans a natural geopolitical advantage. They also argue Republicans do better in down ballot races so that the top of the ticket performance shouldn’t be the primary factor in assessing whether or not maps are fair.

The Supreme Court requested that parties submit new maps by January 12th and appointed two nonpartisan consultants to review the maps and make suggestions by February 1st. Various entities including republicans and democrats in the legislature, the Governor, the plaintiffs in the case and others did submit maps. On February 1st, the consultants found that of the six maps in consideration, the two republican maps did not “deserve further consideration” because they were considered “partisan gerrymanders”. According to the consultants, the four remaining maps fit the criteria sought by the Court and could be considered for the final maps. All four of these maps would have the very likely result of pushing the Senate and Assembly to a more evenly balanced partisan split.

While the Supreme Court was considering how to determine final maps, Republicans in the legislature surprisingly made the decision to pass the exact maps that Evers submitted. Surprising because under the Evers version of the maps many current republican incumbents would either be paired with other incumbents or drawn into districts that are more favorable to democrats. By the numbers alone the Evers maps would significantly bridge the partisan gap in both the Senate and Assembly and would give democrats a chance at some point to win the majority in one of the houses. Something they haven’t done since they lost both houses in the 2010 elections. Governor Evers signed his maps (sent to him by the legislature) and barring a court challenge Wisconsin will indeed have new maps going in to the 2024 elections.

The new maps still lean slightly republican, but democrats will have more representation in both houses and have an outside chance to gain the majority in both the Senate and the Assembly. Regardless of whether the houses flip, the margins will certainly be compressed, and the overall dynamics will shift next session.

On Tuesday, March 12th the State Senate had what is expected to be its final session day of the year. All that remains now is the Governor’s action on a number of bills. It is possible the legislature returns for a veto override attempt, but for most legislative activity the session is over.

There were a handful of bills WISCA was tracking until the end. Here is how they ended up:

• Advance Practice Registered Nurse Bill (AB 154/SB 145) – This bill has passed both houses and awaits the Governor’s final decision. He vetoed a similar bill last session, and while there were some changes made to accommodate his concerns, it is unclear if the amendments were enough for him to sign the bill. The Wisconsin Medical Society and the Wisconsin Society of Anesthesiologists remain opposed to the bill. WISCA was interested in this bill as one of the proposed amendments would’ve made changes to collaborative agreements with nurse anesthetists and doctors that would’ve presented significant challenges to some of our ASC’s. Ultimately this amendment failed.
  
  
• Hospital Price Transparency Bill (AB 338/SB 328) – This bill died but there is some talk of a legislative study committee this summer that will include a broader scope beyond just hospitals.
  
  
• International Physicians Bill (AB 954/SB 900) – This bill allows for licensure of international physicians provided they meet a number of requirements. WISCA requested and received an amendment that included ASCs as potential landing places for qualified physicians. The bill passed both houses and is expected to be signed by the Governor.
  
  
• Preliminary Health Care Credentials Legislation (AB 144/SB 158) – WISCA supported this legislation as it aims to reduce the time it takes for DSPS to license health care professionals. The bill will provide temporary licensure if certain requirements are met in order to speed up the process. The bill passed both houses and will likely be signed by the Governor.
  
  
• Surgical Black Box Bill (AB 870) – This bill allows patients to have their surgeries recorded. It did not receive a hearing in either house and is “dead” for the session. It is expected to return next session.
  
  
• Informed Consent Bill (SB 127/AB125) – ASCs were added to this bill late in the process. It would require providers to obtain informed consent for any pelvic examinations of a patient while they are under anesthesia. The bill failed to pass and is “dead” for this session. We expect it to return next session.

WISCA works closely with our national association partner – the Ambulatory Surgery Center Association (ASCA) – on advocacy and other issues important to our members. In fact, the WISCA Government Affairs Team joins a national ASCA state chapter call twice a month for a federal regulatory and legislative briefing and closely follows their published Government Affairs Updates. Here is the latest federal government affairs news from ASCA:

• Federal Regulatory Update

• • ASCA’s ASC Quality Reporting Program Resources Updated for 2024: ASCA has updated our ASC Quality Reporting (ASCQR) Program home page to reflect 2024 measures and deadlines. You can also visit ASCA's updated ASCQR Program requirements webpage for information on how to comply with ASCQR Program requirements in 2024, and the Ambulatory Surgical Center Quality Reporting Specifications Manual for more information on all measures. Facilities should also be sure to check out the Outpatient and Ambulatory Surgery Consumer Assessment of Healthcare Providers and Systems (OAS CAHPS) Survey page which provides more information on the OAS CAHPS survey which will become a mandatory component of the ASCQR Program in 2025. Contact Kara Newbury with questions.
  • Pre-Proposed Rule CPL Recommendation Process: The Centers for Medicare & Medicaid Services (CMS) has provided more information regarding the new recommendation processfor the ASC Covered Procedures List (ASC-CPL). This process enables interested parties to submit codes for consideration to be added to Medicare's ASC-CPL. The submission period will start on January 1, 2024, and conclude on March 1, 2024, for 2025 rulemaking. ASCA will continue to advocate for the addition of complexity-adjusted code combinations and alignment with the Hospital Market Basket to update reimbursement rates. More information about the recommendation process will be available in January in ASC Focus Magazine’s Digital Debut. If you have specific procedures you would like ASCA to advocate for, please contact Kara Newbury.
  • Clinician Reimbursement Correction Notice: Medicare reimbursement for clinicians is set to decline by 3.37 percent unless Congress acts. Several major specialties that operate in ASCs, such as orthopedic surgery, ophthalmology and vascular surgery, are expected to see negative impacts. ASCA has been active in advocating for relief from these cuts, most recently signing on to a letter with 53 other health organizations requesting congressional action. Representatives Mariannette Miller-Meeks (R-IA), Ami Bera (D-CA), Larry Bucshon (R-IN), and Kim Schrier (D-WA) circulated a “Dear Colleague” letter to members of the US House urging quick legislative action to prevent the 3.37 percent reimbursement cut scheduled for January 1, 2024. In previous years, a correction notice has been issued to resolve this issue.
• Update on Federal Price Transparency Legislation: On December 11, the Lower Costs, More Transparency Act (H.R. 5378) passed the US House of Representatives by a vote of 320–71. As previously reported, language pertaining to ASCs under Sec. 104 of H.R. 5378 is identical to the price transparency legislation that ASCA lobbied against in July. On Thursday, December 14, the companion bill, S. 3548, was introduced in the US Senate. Section 5 (5)(B)(i-ii) of the legislation nearly matches the language of H.R. 5378. ASCA has been working closely with committee staff to improve the legislation and will report on any updates. If passed, implementation would begin in January 2026.