Success for surgery centers! Deletions to ASC list reduced from 100 to five

Success for surgery centers! Deletions to ASC list reduced from 100 to five

Medicare officials make 65 additions instead of 25

Instead of deleting 100 procedures from the list of procedures approved by Medicare for ambulatory surgery centers (ASCs), the Centers for Medicare & Medicaid Services (CMS) will delete only five procedures for which it received no comments, based on an interim final rule that has been published. (See list of deletions.)

Michael A. Romansky, JD, Washington counsel for the American Association of Ambulatory Surgery Centers (AAASC) and Outpatient Ophthalmic Surgery Society (OOSS) says he is thrilled with the reduction in deletions.

"It is a tribute to my clients, other ASC organizations, and hundreds of individual centers throughout the country that didn’t throw the towel in and decided instead to do everything that could be done to overhaul a terrible regulation," says Romansky, who is senior partner with Strategic Health Care, a health care lobbying, consulting, and association management firm in Washington, DC.

"Credit also goes to CMS for realizing that, notwithstanding their formulas designed to get them to the right answers, their analysis was faulty and that they relied on providers in the trenches for some sage advice."

Along with AAASC and OOSS, the Federated Ambulatory Surgery Association (FASA) and others provided information on the proposal, which was "misguided," says Kathy Bryant, FASA executive vice president.

Bryant also credits the American Medical Association, national medical specialties, and Sen. Charles E. Grassley (R-IA), the chairman of the Senate Finance Committee, for their help.

Grassley wrote a letter to CMS, which stated, "I am concerned that the recent proposed rule suggests deleting a number of procedures that should not be deleted as long as the procedure can be performed in an ASC setting at the same or greater level of safety as compared to an outpatient setting." His letter specifically mentioned procedures that treat congenital deformities, burn injuries, traumatic injuries, and cancer.

"Preventing ASCs from performing certain procedures in an ASC setting may affect access to care, especially in rural areas where an ASC is more convenient than an outpatient facility," the senator’s letter said.

CMS also is adding 65 procedures to the existing 2,464 procedures on the ASC list. (See list of additions, below.) This number is 40 more than CMS proposed initially. Bronchoscopies and selected endoscopies were added. "However, there are many more procedures that they did not add that should have been — numerous eye procedures for example," Bryant says.These include trabeculoplasty (65855); retina repair, photocoagulation (67105); prophylaxis of retinal detachment, photocoagulation (67145); destruction of retinal lesions, photocoagulation (67210); destruction of retinal lesions, photodynamic therapy (67221); and destruction of extensive or progressive retinopathy, photocoagulation (67228), according to Romansky.

In many cases, CMS officials simply said their medical advisors didn’t agree with comments, Bryant points out. "This is a ridiculous process. You have the people doing the procedures commenting on them, and a few physicians employed by CMS block the additions without any discussions or visits to ASCs," she says.

Before blocking a procedure, ASC physicians should have the opportunity to meet with CMS physicians and have the center physicians share data and respond to questions, Bryant suggests. "Give and take would result in better decisions for patients," she adds.

CMS representatives defend their process for adding and deleting ASC list procedures.

"If you look at our proposed rule and the final rule, it’s clear that we listened," says a CMS spokeswoman, who requested not to be identified based on her agency’s policy. "There is a difference between listening and just rubber-stamping," she notes.

In addition to considering submitted comments, CMS officials met with ASC groups and individuals, the spokes-woman points out.

"It’s a pretty open process and pretty effective process, from an ASC standpoint," she says.

Romansky reports frustration and says CMS did "virtually nothing to affirmatively correct their sins of omission, i.e., add a myriad of procedures to the list, which every credible source has argued for years should be available to Medicare beneficiaries in ASCs." Laparoscopic cholecystectomies are one example, he says.

Bryant says that she is "appalled" that laparoscopic cholecystectomies still are not on the list, for a couple of reasons:

"The first is that other patients have had access to lap choles in ASCs since 1988, but we are treating Medicare patients as second-class citizens and denying them access," she says.

Secondly, CMS officials’ medical facts are wrong in terms of what happens when a procedure needs to convert to open, Bryant notes. "FASA data show a conversion rate of 0.62%, and for these, we show that only in one instance was the open not completed" in the ASC, she adds.

The assumption underlying this position is that the hospital is always safer, "and this is simply not a valid assumption," Bryant says.

Overall, the changes between the proposed and final rule ind icate how freestanding surgery centers can make a difference with their response, experts say.

"Comments are important, but information and data were critical" in obtaining changes in the final rule, Bryant explains. More industry data gathering is essential, she says. "I would encourage ASCs to respond to surveys from their associations," Bryant adds.

The final rule was published in the May 4, 2005, Federal Register. It takes effect July 5, 2005. (To access the rule or submit comments, see resources, below.)

Overall, "the problems with the list still exist, meaning FASA’s long-term goal of eliminating the list remains a priority," Bryant says.

The groups that Romansky represents also have that goal, he notes.

"It becomes all the more clear that there is only one viable answer: the elimination of the ASC procedures list, replaced instead, as MedPAC [the Medicare Payment Advisory Commission] recommended, with a much narrower list of procedures, which considering patient health and safety, cannot be provided in ASCs," Romansky says. This will be a cornerstone of legislation, which the ASC industry is hoping to enact in Congress this year, he explains.

Craig Jeffries, executive director of the AAASC says, "AAASC members and state ASC associations have been proactive at building the case for legislation."

The legislation still is being drafted. However, at a minimum, it will be based on the following statements, according to Romansky:

• The ASC procedures list should be eliminated. The decision as to the appropriate site of surgery should be made by the surgeon in consultation with the patient.
• CMS should rebase ASC facility fees within the next two years.
• The new ASC payment system should link ASC facility fees to the payments made to hospital outpatient departments for the same surgical procedures.
• ASCs should receive the same annual updates paid to hospitals, as well as enjoy other additional payments made to hospitals, including outliers, implants, and medical devices.
• The system should be phased in over several years.

"Broad support from allied organizations and key members of Congress to enact a change is falling into place," Jeffries adds.

Resources

• For more information, contact Dana Burley in the Center for Medicare Management. Phone: (410) 786-0378.
  
  
• View the entire regulation at: www.cms.hhs.gov/suppliers/asc/1478_42805.pdf.
  
  
• Comments must be received no later than 5 p.m., July 5. In commenting, please refer to file CMS-1478 IFC. Comments may be submitted at www.cms.hhs.gov/regulations/ecomments. Attachments should be in Microsoft Word (preferred), WordPerfect, or Excel. Or mail one original and two copies to: Centers for Medicare & Medicaid Services, Attention: CMS-1478-IFC, P.O. Box 8017, Baltimore, MD 21244-8017.