The 2023-24 legislative has come to an end, and legislators have shifted 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 joinsCLproductsupport@wheda.com 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:
The rule could increase costs for surgery centers
The ASCA Journal | BY ALEX TAIRA | MAY 3, 2024
The Federal Trade Commission (FTC) voted 3-2 to adopt the “Non-Compete Clause Rule” or the final rule, last week. The final rule states that the use of noncompete agreements is an unfair method of competition and is thus comprehensively banned effective 120 days after the final rule’s publication in the Federal Register. The rule is scheduled for publication on May 7, 2024, corresponding to a September 4, 2024, effective date. The FTC first proposed this policy in a proposed rule released January 2023, which received more than 26,000 public comments in 90 days.
ASCA submitted formal comments opposing the proposed rule, but did not take a position on the appropriateness of noncompete agreements specifically. In the comments, ASCA noted, “Under this proposal, surgery centers and other tax-paying healthcare providers would be subject to restrictions that tax-exempt systems would not. Hospitals are more likely to employ physicians currently, and this rule would allow nonprofit providers to more aggressively engage in noncompetitive behavior that would impede a physician’s ability to eventually move to an ASC or other healthcare provider.”
The final rule “adopts a comprehensive ban on new non-competes with all workers, including senior executives.” Existing noncompete agreements will be voided after the effective date, except for senior executives who are defined as workers in a “policy-making position” earning more than $151,164 per year. The final rule creates a definition for “policy-making position” based on job duties rather than job titles, focusing on roles whose decisions have a significant impact on the business. The FTC expects that approximately 0.75 percent of the workforce are senior executives and would thus be allowed to maintain existing noncompete agreements.
The FTC also clarifies that certain, tax-exempt nonprofit entities would fall under the commission’s jurisdiction and be subject to the noncompete prohibition. FTC states that it can determine on a case-by-case basis whether an organization is engaged in solely charitable business practices or whether an organization’s business operations are intended to generate profit. Those organizations whose business goal is profit for itself or its members would be considered under FTC jurisdiction and subject to the noncompete prohibition, regardless of the organization’s tax status.
The FTC acknowledges receiving many comments requesting the exclusion of some or all of the healthcare industry but was not persuaded. The commission remains unconvinced of negative effects, and “specifically finds that non-competes increase healthcare costs.” The FTC press release states that the final rule is “expected to lower health care costs by up to $194 billion over the next decade.”
The American Hospital Association released a strong statement opposing the final rule, calling it “bad law, bad policy, and a clear sign of an agency run amok.” The Federation of American Hospitals also released a statement opposing the final rule, asserting that the prohibition would make it “more difficult to recruit and retain caregivers … while at the same time creating an anti-competitive, unlevel playing field between tax-paying and tax-exempt hospitals.” On the other side, the American Academy of Family Physicians released a statement supporting the rule. The American Medical Association has yet to release an official statement, but the association has been a supporter of restricting noncompete agreements.
The final rule was subject to legal challenges almost immediately, most notably by the US Chamber of Commerce, the largest business trade organization in the world. On April 24, just one day after the final rule release, the Chamber of Commerce filed a lawsuit in a US District Court in Texas challenging the rule and seeking an injunction that would prevent implementation. Additional legal challenges are expected, and ASCA will monitor the progress of lawsuits over the coming months.
WISCA wants your help in identifying potential issues that you and your ASC team would like to see addressed at the state level in the next legislative session. If you have ideas, questions, or concerns, please email the WISCA office at WISCA@badgerbay.co. The earlier we have these discussions, the more prepared we will be to impact change in the 2025-26 legislative session. Thank you!
The Joint Finance Committee endorsed a plan providing $36 million to address the opiate crisis. The plan included a provision that directed DHS to allocate $500,000 for a program that provides safe disposal kits for drugs and $500,000 to provide grants for small facilities (like ASCs) to buy electronic lock boxes for storing and tracking narcotics. Read the approved motion.
As the election season ramps up, so too does the frequency of polling in the state. With Wisconsin positioned to be a national battleground, November will yield competitive statewide races for President and US Senate.
See the latest Marquette Poll of Wisconsin voters, published April 17, here. The poll found that the statewide races are close, with Donald Trump leading Joe Biden 51-49 and Tammy Baldwin leading Eric Hovde 52-47 percent among registered voters. A recent CBS News poll of registered voters found Trump leading Biden 50-49 and Baldwin leading Hovde 48-41. An Emerson College poll of swing state voters published yesterday found Trump ahead of Biden by two points in Wisconsin, 47-45, with eight percent undecided.
Democrat incumbent Tammy Baldwin is seeking a third term in the U.S. Senate and while Wisconsin is considered a swing state, Baldwin has outperformed fellow Democrats in rural areas in previous races. She has already raised and spent millions on early advertising and finished the first quarter of the year with more than $10 million cash on hand.
Republican challenger Eric Hovde is a businessman from Madison with experience in real estate and financial services. He officially entered the race in February with the backing of the National Republican Senatorial Committee and has since received Donald Trump’s endorsement. So far, Hovde has self-funded his campaign to the tune of $8 million.
Republicans may have caught a break if they can avoid a primary and focus all their attention on Baldwin. Fellow Republican businessman Scott Mayer opted not to enter the race out of a desire to avoid a primary election while former Milwaukee County Sheriff David Clarke has also been discussed as a possible candidate, although the later it gets the less likely he would be to jump in.
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:
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.
Association of Wisconsin Surgery Centers 563 Carter Court, Suite B Kimberly WI 54136 920-560-5627 I WISCA@badgerbay.co
