Federal Government Affairs News and Notes:

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 government affairs news from ASCA:

• ASC/OPPS Proposed Payment Rule

ASCA will send the first draft of our ASC/OPPS Proposed Payment Rule comment letter to the Government Affairs Committee and the ASCA Board of Directors this week. They will have one week to provide feedback to Kara Newbury and then a second draft of the letter will be circulated for additional feedback. Comments are due to The Centers for Medicare and Medicaid Services (CMS) by September 13. ASCA will have a state associations sign-on letter ready for circulation by August 29. WISCA will likely sing-on to the letter, pending WISCA Legislative Committee approval.

• ASC-20

The first quarterly data submission deadline for ASC-20: COVID-19 Vaccination Coverage Among HCP (Health Care Personnel) was August 15, 2022. While CMS provided no extension for the August 15 deadline, there is an “extraordinary circumstance exception” that can be requested.

• Public Health Emergency Extension

When the Biden administration took office, they indicated they would give 60 days’ notice before ending the Public Health Emergency (PHE). Since the current extension of the PHE runs through mid-October and the states have not yet been notified otherwise, the PHE is expected to be extended. CMS did release a document last week to aid healthcare providers in phasing out flexibilities allowed during the Public Health Emergency, entitled “Creating a Roadmap for the End of the COVID-19 Public Health Emergency.”

WISCA Legislative Affairs Report:
Update on Proposed Medical Chaperone Rule

By Andrew Engel – WISCA Lobbyist (Hamilton Consulting)

As has been previously reported in the WISCA Advocacy Newsletter, WISCA submitted comments to the Wisconsin Medical Examining Board (MEB) detailing how compliance with the Board’s proposed “medical chaperone rule” could cost Wisconsin ASC’s tens of millions of dollars.

If you recall, the regulatory board was considering a new rule that would have required a medical chaperone be present in an exam room whenever a physician is performing an examination or procedure that involves the breast, genitals, or rectal area of a patient. In addition, the proposed rule would consider these types of exams conducted without a chaperone as unprofessional conduct.

At its meeting last month, the MEB decided to significantly pare back its proposed rule on medical chaperones, abandoning the requirement that ASC’s provide a separate chaperone to patients when requested. At their latest meeting, the MEB reviewed new draft language, which requires physicians and their employers to have a policy on medical chaperones and to make the policy readily available to affected patients. A Department of Safety and Professional Services (DSPS) staff attorney has said during MEB meetings that the policy could theoretically be as simple as “we don’t require the use of medical chaperones here.”

Following some discussion, the board made minor changes to the proposed language so that the rule does not specifically make either physicians or their employers responsible for posting the policy. It simply requires that a policy be made available to patients. MEB members did not want to make physicians responsible for what may be a failure of their employer to create or post a policy, while MEB lacks the authority to directly regulate hospitals and clinics.

A representative from the Wisconsin Medical Society thanked the board for listening to stakeholder input and crafting specific language that considers who bears the burden of the rule.

MEB members approved a motion allowing the board chair and DSPS staff to finalize the rule and submit it once again for public comment on its economic impact. The review is expected to be complete in a month or two, before the board’s October meeting.

DSPS Secretary Dawn Crim Leaving Evers Administration

Earlier in July, Wisconsin Department of Safety and Professional Services (DSPS) Secretary Dawn Crim announced that she will be leaving the Evers Administration on August 1, 2022.  The State Medical Examining Board and the State Board of Nursing are housed within DSPS, which also processes nearly all occupational license applications in Wisconsin, including licenses for physicians, nurses, and other health care professionals.  Earlier this year, DSPS implemented an online platform for health care occupational license applications. The agency will transition the remaining occupational licenses that they handle to their online platform in the future. 

Governor Evers has announced that DSPS Assistant Deputy Secretary Dan Hereth will be the DSPS Secretary-designee upon Secretary Crim’s departure. 

DHS Announces Annual Adjustment of Health Care Provider Fees for Patient Health Care Records

Effective on the first day of each July, the Wisconsin Department of Health Services publishes an updated schedule of the maximum fees that health care providers may charge for producing patient medical records.  These fees are based on the consumer price indices for the prior two calendar years.  The fees vary based on the number of pages and the type of file provided (e.g., paper documents, microfiche, x-rays, etc.). CLICK HERE to view the fee schedule.

State Medicaid Program Projected to End Current Budget Cycle with $414.5 Million Surplus

In their required report to the Legislature on the overall condition of the Medicaid program budget, the Wisconsin Department of Health Services (DHS) said the Wisconsin Medicaid program is expected to end the 2021-23 budget cycle with a surplus of $414.5 million in state finding. 

The department cited the COVID-19 public health emergency (PHE) as a contributing factor to the surplus. The federal Families First Coronavirus Response Act passed in 2022 added 6.2 percentage points to the federal Medicaid match as long as the PHE remains in place.

Earlier this month, the Biden Administration and the U.S. Department of Health and Human Services (HHS) announced it has extended the COVID-19 PHE through October 13, 2022. The PHE provides special access to health insurance and offers key flexibilities on telehealth and reporting deadlines. The Biden Administration has long agreed to give 60 days’ notice warning if the PHE will not be extended again.

CLICK HERE to read the entire DHS report.

Federal Government Affairs News and Notes:

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 government affairs news from ASCA:

• CMS Releases 2023 Proposed Medicare Payment Rule

The Centers for Medicare & Medicaid Services (CMS) released the 2023 proposed payment rule for ASCs and hospital outpatient departments (HOPD) on July 15, 2022.

CMS proposed to continue to align the ASC update factor with the one used to update HOPD payments. Under the proposal, CMS would continue to use the hospital market basket to update ASC payments for calendar year (CY) 2023 as the agency assesses this policy’s impact on volume migration. This will be the last year of the trial period.

If the proposed rule were to be finalized as drafted, ASCs would see, on average over all covered procedures, an effective update of 2.7 percent, which is a combination of a 3.1 percent inflation update based on the hospital market basket and a productivity reduction mandated by the Affordable Care Act of 0.4 percentage points. This is an average and the updates might vary significantly by code and specialty.

In addition, although ASCA provided a list of 47 codes for procedures that are being done safely on non-Medicare populations for consideration to be added to the ASC Covered Procedures List (ASC-CPL), CMS added only one of the requested codes: 38531 (Open bx/exc inguinofem nodes).

“This proposed rule misses an opportunity to lower costs and improve access to care to beneficiaries by not adding many viable procedures that ASCs are safely performing on commercial patients,” says Bill Prentice, chief executive officer of ASCA. “We have provided clinical data to CMS that should be used to add these procedures to our allowable list for 2023.”

The payment rule proposals include:

• An update to the ASC conversion factor using the hospital market basket. The new conversion factor would be increased by 2.7% for facilities that meet the quality reporting requirements.
• An update to the ASC Relative Payment Weights for CY 2023, which includes an ASC weight scalar of 0.8474.
• Changes to the Inpatient Only (IPO) List, which would remove ten codes from the IPO list for 2023.
• The addition of one code to the ASC-CPL for 2023 (38531 – Open bx/exc inguinofem nodes).
• ASCA seeks outcomes data to represent the safety and quality care of ASCs. CMS indicated that they would not add additional codes without this data.
• A name and start date change for the nomination process. The name change would switch from “Nominations” to the “Pre-Proposed Rule CPL Recommendation Process.”
• The nominations process start date is revised to January 1, 2024.
• A complexity adjustment that adds 52 new C codes to the ASC-CPL. This would create a special payment policy for code combinations that result in more complex and costly procedures, similar to the complexity adjustment currently available in the Outpatient Prospective Payment System (OPPS).
• An ASC payment system policy for non-opioid pain management drugs and biologicals that function as surgical supplies.
• The delay of ASC-11 Cataracts: Improvement in Patient’s Visual Function within 90 Days Following Cataracts Surgery and the continuation of voluntary reporting for the measure. There is also a proposal to adopt a volume indicator such as ASC-7 potentially, and there were no changes made to ASC-20 COVID-19- Vaccination Coverage for Healthcare Personnel.
• A Request for Information about using CMS data to drive competition in healthcare marketplaces.

CLICK HERE to review the full rule and HERE for the rule analysis.

ASCA will provide additional analysis soon, including a rate calculator that allows users to determine what ASCs will be paid locally if the proposal is adopted.

• ASC Facility Tours

Every year, National ASC Month is celebrated in August to highlight the achievements of ASCs across the country, coinciding with Congress’s long August recess. If your ASC is interested in hosting a facility tour for your member of Congress, please complete ASCA’s Facility Tour Interest Form or visit ASCA’s facility tour webpage for more information. In addition, you can also contact the WISCA office at WISCA@badgerbay.co to set up a legislative tour of your ASC with either your member of Congress or local state legislators. In fact, WISCA recently coordinated a tour of the Northwoods Surgery Center in Woodruff, WI with Congressman Tom Tiffany, State Senator Mary Felzkowski, and State Representative Rob Swearengen.

WISCA Legislative Affairs Report:
WISCA Submits Public Comments on Proposed Medical Chaperone Rule

By Andrew Engel – WISCA Lobbyist (Hamilton Consulting)

Good news from the Medical Examining Board (MEB)! The MEB has recently decided against moving forward with the Medical Chaperone Rule as it was written. If you recall, the regulatory board was considering a new rule that would have required a medical chaperone be present in an exam room whenever a physician is performing an examination or procedure that involves the breast, genitals, or rectal area of a patient. In addition, the proposed rule would consider these types of exams conducted without a chaperone as unprofessional conduct.

I want to take this opportunity to thank all the WISCA members who played a role in shaping our Economic Impact response to the MEB on the proposed rule.  It’s clear that the costs of implementing the rule was the key factor in MEB moving away from it. 

While the MEB was hoping that previous revisions to their proposal would reduce the estimated costs, their attorney Jameson Whitney said, “they did not.” The total estimated implementation and compliance costs of the rule, based on comments from providers including major systems like Aurora and SSM as well as specialty and independent practices and ASCs, came to about $75 million annually. That far exceeds the state’s rulemaking threshold of $10 million over two years.  Any language that would require ASCs to provide chaperones appears to be dead for the foreseeable future.

Whitney laid out an alternative option of draft language that would state: “A physician shall comply with the rules established by their hospital or employer regarding chaperones or other observers in patient examinations.” It would also require self-employed physicians to establish a written policy on chaperones/observers.

Whitney acknowledged that this policy could be as simple as “we don’t use chaperones here.” He noted that some systems already have a detailed chaperone policy in place, so this rule wouldn’t force them to change what is working for them. Also, some comments from specialty practices and clinics suggested that the chaperone requirements just don’t make sense for the types of procedures they do.

MEB members discussed Whitney’s proposal and generally agreed that it was better to do something rather than nothing. Signaling to practitioners and providers that MEB takes the issue seriously and will aggressively pursue misconduct claims in this area. Board members confirmed that they will be able to review an applicable written chaperone policy when a misconduct claim arises.

MEB will wait until its next meeting to vote on moving forward with the new language. Whitney predicted that economic impact comments on this version would estimate little to no compliance cost. MEB Chair Dr. Sheldon Wasserman also asked staff to begin auditing the last 20-25 years of disciplinary cases involving sexual assault and violations of patient boundaries to get an idea of the volume of these claims and how they have been investigated in the past.

Wisconsin Sen. Van Wanggaard Visits the Racine Digestive Health Center

Wisconsin Sen. Van Wanggaard (R-Racine) recently visited the Racine Digestive Health Center as part of the Association of Wisconsin Surgery Centers (WISCA) Capitol Connection program to connect WISCA members with their local state legislators to show them firsthand the benefits of the Ambulatory Surgery Center (ASC) model of care. The Racine Digestive Health Center is part of GI Associates, the largest gastrointestinal practice in Wisconsin.

Sen. Van Wanggaard (second from right) takes a few minutes to take a picture with Racine Digestive Health Center staff after his tour of the facility.

“We were thrilled to have Sen. Wanggaard at our Racine facility and appreciated the opportunity to showcase the value of patient care provided in Wisconsin surgery centers,” said Bob  Kwech, Executive Director at GI Associates and WISCA Legislative Chair. “Our team is committed to proving innovative, personalized care in the most cost effective means possible for our patients, and we were grateful for Sen. Wanggaard’s interest in the critical role surgery centers play in Wisconsin’s health care system.”

Wanggaard, who was first elected to the Wisconsin Senate in 2010, represents the 21st Senate District, which includes portions of Racine and Kenosha Counties. He serves as the Senate Majority Caucus Chair and is Chairman of the Senate Judiciary and Public Safety Committee.

These ASC legislative visits set-up through the Capitol Connection program have a significant impact on lawmakers and truly helps WISCA members strengthen relationships with their legislators and educate them on the regulatory challenges ASCs face and the legislative solutions we need to increase access to affordable, quality care provided in the surgery center setting. It also allows policymakers to see how the ASC model of care has transformed the outpatient experience for patients, providing them with a more convenient alternative to hospital-based outpatient procedures at a lower cost and with a strong record of quality care and positive outcomes.

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. 

Federal Government Affairs News and Notes:

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 government affairs news from ASCA:

• CMS Issues Two New Memos for State Surveyors
  In June, the Centers for Medicare & Medicaid Services (CMS) issued two new memos for state surveyors related to vaccination requirements for surveyors and the frequency of surveys for compliance with the federal healthcare worker COVID-19 vaccination mandate.
• • QSO-22-17-ALL, issued June 14, reduces the frequency that state survey agencies (SA) and accrediting organizations (AO) will review a facility’s compliance with the federal healthcare worker COVID-19 vaccination mandate. Under this guidance, state survey agencies and accrediting organizations will only perform compliance reviews for staff vaccinations during initial and recertification surveys and in response to specific complaint allegations that allege noncompliance with the staff vaccination requirement. SAs and AOs will no longer be expected to perform these reviews on every survey. The memo also notes that CMS intends to update its interpretive guidance describing Immediate Jeopardy, Condition-level and actual harm determinations to ensure deficiency citations recognize good faith efforts by providers/suppliers and to more fully evaluate harm or potential harm to patients/residents by considering trends in COVID-19 rates in the community.
  • QSO-22-18-ALL, issued June 16, rescinds QSO-22-10-ALL (issued January 25) which had established that SAs and AOs entering provider and supplier locations must be vaccinated. Under the new guidance from QSO-22-18-ALL, CMS notes that under the original guidance, “State Survey Agencies and [Accrediting Organizations] are ultimately responsible for compliance with this expectation.” The new guidance also notes that the federal government has explained that the previous guidance does not include any possibility of penalties for noncompliance and actually prohibits facilities from inquiring about surveyor vaccination status, stating, “We understand that there is nonetheless some ongoing confusion about this guidance, which we expect this [rescission] will resolve.”
• CMS Updates Guidance on Emergency Exercises
  The Centers for Medicare & Medicaid Services (CMS) recently updated its surveyor memo that provides “Guidance related to Emergency Preparedness- Exercise Exemption based on A Facility’s Activation of their Emergency Plan.” CMS Emergency Preparedness (EP) regulations require facilities to “conduct exercises to test the facility’s EP plan to ensure that it works and that staff are trained appropriately about their roles and the facility’s processes.” If the facility must activate its emergency plan, however, the regulations allow for a one-year exemption from the facility’s required full-scale testing exercise. As the COVID-19 public health emergency (PHE) continues, facilities that are still operating under their activated emergency plans may continue to be exempt from their next full-scale exercise. CMS provides examples of scenarios and guidance on how to comply in this surveyor memo. The agency does encourage facilities to continue conducting their individual facility-based exercises, if possible.

• Clarification on May Updates to NHSN COVID-19 Reporting
  As ASCA previously announced, the Centers for Disease Control and Prevention (CDC) recently announced changes to the Healthcare Personnel Safety (HPS) Component COVID-19 vaccination forms following the National Healthcare Safety Network (NHSN) May 2022 release. These changes impact data collection and reporting for ASC-20: COVID-19 Vaccination Coverage Among Health Care Personnel. Among the changes is the CDC’s revised definition of what it means to be “up to date” on vaccinations. To be considered as such, a healthcare worker who is eligible must have received at least one booster. However, ASCA has confirmed with the Centers for Medicare & Medicaid Services (CMS) that although the definition of “up to date” includes at least one booster, only data on an initial series, which was considered a complete vaccination course when the rule was published, will be made publicly available. In other words, although it is a mandatory field to report, booster data will not count against your vaccinated healthcare personnel totals.
• CMS Releases Updates to ASC Guidance for Surveyors
  As ASCA announced last week, the Centers for Medicare & Medicaid Services (CMS) released a surveyor memo that provides updates to the State Operations Manual (SOM) Appendix L - Guidance for Surveyors: Ambulatory Surgical Centers. CMS published multiple final rules over the past several years that amended the ASC Conditions for Coverage (CfC). This Advanced Copy of Appendix L makes conforming revisions to the regulatory tags and interpretive guidelines, as well as clarifications and technical corrections to other guidance areas based on stakeholder feedback. Please note that since this is an Advanced Copy, it is subject to change slightly before the final copy is posted to the online SOM.

Latest Marquette University Law Poll Shows Tight Races at the Top of the Ticket

The latest Marquette University Law Poll, which was released on June 22, shows that Wisconsin’s top political races – for governor and the U.S. Senate – are extremely close less than a month and a half from the primary and a little more than four months from the November general election.

In the Republican primary for governor, which will be held on Aug. 9, former Lt. Gov. Rebecca Kleefisch is in a dead heat with construction magnate Tim Michels. The poll results showed 27 percent of Republican respondents favored Michels, while 26 percent backed Kleefisch. Other GOP candidates did not break the 10 percent mark.

GOP Governor Primary:

• Michels – 27%
• Kleefisch – 26%
• Businessman Kevin Nicholson – 10%
• State. Rep Tim Ramthun – 3%
• Other or Undecided – 34%

The poll also showed that all GOP candidates trailed incumbent Wisconsin Governor Tony Evers (D) in projected head-to-head general election matchups:

• Evers: 47% — Kleefisch: 43%
• Evers: 48% — Michels: 41%
• Evers: 48% — Nicholson: 40%
• Evers: 51% — Ramthun: 34%

In the Democratic primary for U.S. Senate, the winner of which will face incumbent U.S. Senator Ron Johnson (R), current Lt. Gov. Mandela Barnes led the pack with 25 percent support from Democratic poll respondents. Milwaukee Bucks executive Alex Lasry came in at 21percent, while Wisconsin State Treasurer Sarah Godlewski received 9 percent support.

DEM U.S. Senate Primary:

• Barnes – 25%
• Lasry – 21%
• Godlewski – 9%
• Outagamie County Exec Tom Nelson – 7%
• Other or Undecided – 38%

In addition, the poll also showed Barnes, Godlewski, and Nelson all leading Sen. Johnson in potential general election matchups:

• Barnes: 46% — Johnson: 44%
• Godlewski: 45% — Johnson: 43%
• Nelson: 44% — Johnson: 43%
• Johnson: 45% — Lasry: 42%