The Outpatient Surgery Quality and Access Act of 2021 (November 29, 2021)




ASCA Chief Executive Officer Bill Prentice is joined by Annie Sariego, the chair of ASCA’s Government Affairs Committee, and Kara Newbury, ASCA regulatory counsel and director of government affairs, for a discussion about the Outpatient Surgery Quality and Access Act of 2021. This legislation, which was recently introduced in Congress, was developed by several members of the US House and Senate with the help and cooperation of ASCA. It is intended to improve the patient experience, lower the cost of outpatient surgeries and keep ASCs competitive with other sites of care.

Narrator: 0:06
Welcome to the Advancing Surgical Care Podcast brought to you by ASCA, the Ambulatory Surgery Center Association. ASCA represents the interests of outpatient surgery centers of every specialty and provides advocacy and resources to assist them in delivering safe, high-quality, cost-effective patient care. As with all of ASCA’s communications, please check to make sure you are listening to or viewing our most up-to-date podcasts and announcements.

Bill Prentice: 0:37
Hello, and welcome to the Advancing Surgical Care Podcast brought to you by the Ambulatory Surgery Center Association, or ASCA. My name is Bill Prentice, I’m ASCA’s CEO and host of this episode. Today, my guests and I will be discussing the Outpatient Surgery Quality and Access Act of 2021, which was recently introduced with bipartisan support in both the House and the Senate. This comprehensive legislation was developed by several members of Congress with the help and cooperation of ASCA to lower the costs of outpatient surgeries and procedures and keep ambulatory surgery centers competitive with other sites of care. For a more in-depth discussion about the provisions of this legislation, I’ll be joined shortly by ASCA Director of Government Affairs and Regulatory Counsel Kara Newbury, as well as the chair of ASCA’s Government Affairs Committee, Annie Sariego. In addition to her leadership role with ASCA, Annie is market president of PE GI Solutions, overseeing both their business and clinical operations in New York and New Jersey. For those who may not be familiar, PE GI Solutions is the largest single-specialty developer, owner and manager of ASC GI practices in the country. So, with those introductions, let me bring on my guests. Kara and Annie, welcome to the podcast.

Kara Newbury: 1:48
Thanks, Bill. It’s good to be here.

Annie Sariego: 1:50
Thank you, Bill. Great to be here as well.

Bill Prentice: 1:52
Well, Kara and Annie, as you both know, there are a lot of important provisions in this legislation with benefits for patients, ambulatory surgery centers and really anyone concerned about high healthcare costs. And since we have a lot to unpack in this short podcast, I’m going to suggest that we focus our discussion in that order and start by talking about the provisions that would directly benefit patients. But before we start, I also want to remind our listeners that they can also find a considerable amount of detail about this legislation on the ASCA website. So now, Kara, why don’t you give our listeners a quick summary of the two sections that would, one, cap copayments for Medicare beneficiaries, as well as provide them with useful quality data when trying to choose a preferred site of care.

Kara Newbury: 2:34
Sure, thanks, Bill. And I’ll just note that both of these provisions were kind of exacerbated or brought to our attention even more by the information that’s available on the CMS website where you can compare costs between ASCs and hospital outpatient departments. So, when we started doing that a couple of years ago, we saw that for certain cases that were a higher dollar amount, that ASCs would actually be a more expensive option for Medicare beneficiaries than hospital outpatient departments. And this is because the patient responsibility is capped in the hospital outpatient department setting—currently, it’s about $1,484. So, you can imagine with a 20 percent copay in the ASC, anything for which the copay would be more than that, the Medicare beneficiary is paying more to have their procedure done in the ASC, which just doesn’t make sense, especially since Medicare makes the hospital whole for that procedure. So really, it’s currently a lose-lose, where the Medicare beneficiary has less access to care and the Medicare program is spending more money. And then the other provision you mentioned is a more apples-to-apples comparison of quality data. So, as I mentioned, this tool, this resource on CMS’ website shows a cost comparison, and we thought, well, it’d be great if we had a more direct comparison of quality between ASCs and hospital outpatient departments. So, for any current measures that are in both the ASC Quality Reporting Program and the Hospital Outpatient Quality Reporting Program, there would be a more transparent and easy-to-access quality comparison available. And then we would also hope that in the future, there would be more measures coming down the way for both sites of service that CMS would provide that direct comparison of quality between our settings.

Bill Prentice: 4:28
Well, thank you, Kara, for that explanation of these provisions. With a copay cap, I mean, it’s really extraordinary that the government has basically set up a situation, we are creating a disincentive for Medicare beneficiaries to go to the lower cost site of service. I mean, the cost to the taxpayer of that could be enormous. So hopefully, that’s something that Congress will quickly understand and we can get that signed into law because that just doesn’t make sense. Well, Annie, I would like to talk to you now. In comparison to virtually all hospital outpatient departments, we know that ASCs are a lower cost provider. We also believe that the quality of care in ambulatory surgery centers is as good or better than the care provided in hospital outpatient departments. The challenge today is that neither patients nor their advocates really have access to good comparative data on which to make that analysis. How valuable would this comparative data be, not only for your patients, but also for the commercial payers that you contract with?

Annie Sariego: 5:24
Thank you, Bill. I strongly support quality reporting measures that speak to the quality of care being provided by the facility and will help improve care as well as the patient experience. In addition, I support measures that will allow beneficiaries to compare quality data, which will continue to show the great outcomes that we have as well as the cost to them as consumers in ASCs versus that same procedure being done in a hospital outpatient department. Speaking from the experience of PE, I’m very confident that we would fare favorably and save the government as well as the taxpayers, consumers and the insurance companies a considerable amount of dollars.

Bill Prentice: 6:14
Well, that’s great. Well, Kara and Annie, I’m going to ask that we pause for a short message from our podcast sponsor, and we’ll be right back.

Narrator: 6:22
This episode of the Advancing Surgical Care Podcast is being brought to you by National Medical Billing Services, an ASCA affiliate and leading ASC revenue cycle company that helps ASCs properly capture their revenue and maximize their cash flow in a highly compliant fashion. To learn more about National Medical Billing Services’ wide range of revenue cycle services and analytics, visit

Bill Prentice: 6:54
Kara, let’s take a deeper dive on a couple of the provisions that would directly be beneficial to ASCA members. And I’m talking, of course, about the bill’s requirements that the Centers for Medicare & Medicaid Services, or CMS, apply the same annual update factor to ASCs and hospital outpatient departments when setting our rates for the coming year for inflation and, your favorite subject, the elimination of the ASC weight scalar, a little known and probably less understood budget mechanism that effectively penalizes ASCs as we migrate more care into our setting.

Kara Newbury: 7:28
I appreciate that intro to these topics, Bill, you know that I am passionate about these areas. So right now, we are on this five-year trial period for ASCs to be updated based on the hospital market basket as compared to the Consumer Price Index for All Urban Consumers (CPI-U), which we were updated on prior to this five-year trial. Of course, unfortunately, this year it probably would have been better for ASCs to have received the update under the CPI-U, just given the way inflation is going. But we do think at ASCA that it’s beneficial to be consistent and to have the same update factor that hospital outpatient departments have because we have the same cost and the same increases in costs, if not more so, than hospital outpatient departments have, and typically, it’s going to be the case that those healthcare costs are rising at a higher level every year than the CPI-U overall. And so, we think that if it makes sense for this five-year trial period, really since our payment systems are aligned, it should just be a permanent change. So, for as long as our payment systems are aligned, ASCs should be on the same update factor as hospital outpatient departments. With regard to the weight scalar you know I like to talk about, clearly, everybody knows that outpatient is the way to go and that all of our volume really is shifting more and more to the outpatient setting. And yet, CMS, the way that they try to achieve budget neutrality is in these siloed payment systems. And so, what that does is it disincentivizes care to migrate to the more appropriate, less costly and high patient satisfaction site of service of the ASC setting. And so, what this provision would do is it would take our volume in the ASC setting and it would factor it in when CMS does its original weight scalar on the hospital outpatient department side. As we mentioned, our payment systems are tied anyway, so it makes sense for them to just do this adjustment once, instead of having this second weight scalar that they currently do, which has been cutting our weights, and this year, it’s almost 15 percent off of our weights that we’ve been cut. So, we really see this as probably the most important and critical aspect of our legislation in terms of stemming the tide for reimbursement rates. The other provisions we talked about earlier are beneficiary access and very important and critical, but if we can’t do the cases because we don’t get reimbursed enough by Medicare, then really the rest of it is moot. So, we need to get these two payment update provisions enacted in order to ensure the continued viability of the ASC community.

Bill Prentice: 10:14
And obviously, those are two really critical things. And certainly, we know that CMS has the authority currently to keep us on the hospital market basket, but I think getting it into statute is critically important. With the weight scalar, my understanding is we really need Congress to act if we’re going to get this addressed and be able to make that change, am I right?

Kara Newbury: 10:35
Well, CMS could simply eliminate the second weight scalar that they’re doing. When our payment system was aligned officially back in 2007 to 2009, in the statute in the Social Security Act it indicated that CMS was only required to apply that second weight scalar in the first year of full implementation. So, CMS could make that change but as we know through other policy changes that we’ve requested in the past, it’s extremely helpful and sometimes necessary, depending on CMS’ appetite for certain changes, to pursue it through legislation instead of simply relying on the agency to make the change themselves that they could make.

Bill Prentice: 11:19
Annie, like every other business, the cost of staffing and operating an ASC continues to go up each year, especially given the current inflationary pressures. So, it only makes sense that the reimbursements we receive for treating Medicare beneficiaries keep pace with those rising costs. As you know, it’s not just about Medicare reimbursement. Since we know that the commercial marketplace mimics and is influenced by government rate setting, can you comment on the impact that Medicare reimbursement has on your commercial payers?

Annie Sariego: 11:46
Oh, yes, Bill. Well, thankfully, in the GI space, most of our agreements aren’t directly impacted by the rise and fall of Medicare. Over the last few years, Medicare has increased in our GI space about 1 percent, last year was an exception of 2.3 percent on average across our network. We couldn’t survive on Medicare alone. Thankfully, one of the positives that started with Medicare is realizing that many procedures can be done in an ASC, and we, collectively ASCs, are having a positive impact on lowering costs to healthcare in general, as well as increasing access. As a result of Medicare starting this trend, we’re now seeing commercial payers begin to drive care to ASCs by removing pre-authorizations when a physician is performing the procedure in an ASC and increased scrutiny if the patient is going to a hospital. I just want to end with one other comment, and that is that ASCs are subjected to a rigorous set of survey certification standards designed to ensure patient safety. The requirements for achieving and maintaining CMS certification were increased back in 2008 with an overhaul of the ASC Conditions for Coverage, and further safeguards have been implemented to enhance patient safety and quality of care in ASCs. Technology advances increasingly drive procedures to the outpatient setting and research confirms that outpatients are very similar. And survey and certification requirements are essentially the same in both ASCs and HOPDs. So again, to just reemphasize the primary difference between the settings is the much higher cost of delivery of care in HOPDs versus ASCs.

Bill Prentice: 13:39
That’s very interesting. And Annie, I’m kind of heartened to hear about what you’re seeing in the commercial marketplace in terms of payers trying to find incentives and ways to drive patients to the ASC, to the more efficient setting, knowing that they’re going to get the same quality care but just at a lower price. Something, obviously, we really need to see the Medicare program take a greater interest in and so really good to hear that. And, as we know, there are still I think, right now, only about 50 percent of screening colonoscopies for Medicare beneficiaries are being performed in the ASC and we know that many, many more can be provided in the ASC if we just create the incentive for beneficiaries to go there. So, Kara, as you know, there are additional provisions in the bill that would bring greater transparency and fairness to the process of trying to get those additional procedures moved to the ASC procedure list. Year after year, we provide experts and substantial data to CMS to demonstrate that there are many more procedures that we could be safely performing in the ASC setting if they were on our list. What the process seems to lack is transparency and fairness, and I know that in our current payment rule, which just came out last week, a process has been put forward. But can you talk about the provision in our legislation to try and develop that as well?

Kara Newbury: 14:59
Sure, Bill. And as we mentioned, with the CPI-U to hospital market basket change, although things are put in payment rules, we also believe that for specific policies it is important to have them in statute as well. It’s a lot harder to change a statute year over year than it is a payment rule. But to your point, CMS has finalized a nomination process. So, a more formal process for bringing forth codes that should be added to the ASC Covered Procedures List in the future, starting with the 2023 payment rule, so we’ll have to submit any data and information for that process next year. But we still think it’s important to have this in our legislation because we want to make it clear that it is important for Medicare to be more transparent about their process, and in the proposed rule for 2022, it was evident that things can change dramatically based on who is the president and then who is the administration at the time. And so, we don’t want to be subject to kind of those whims, having almost 300 codes added to our covered procedures list one year, and then the vast majority of them being removed the following year. I will just note very quickly on that, because I don’t know if we’re doing a separate podcast on the rule, ASCA didn’t request a lot of those codes that were added in 2021 and, in fact, there wasn’t any significant volume on them. But it’s just troubling more so from a perspective of how does this look to have all these codes that the medical officers at CMS have said are safe to be added to the list then removed just the following year. And so, we do want more transparency in that process and that it doesn’t shift, as I said, so dramatically year to year.

Bill Prentice: 16:49
Absolutely, and it was quite jarring to see that big shift this year and really little, little clinical data behind the decision to pull those procedures back. Annie, kind of a follow-up for you on the same topic—we talked about how Medicare reimbursements possibly impact commercial insurance reimbursement for ASCs a moment ago. Well, thinking about when and how Medicare approves procedures for the outpatient setting, can you tell us how those decisions impact commercial payers and how this legislation would potentially positively impact both ASCs and their patients, regardless of payer?

Annie Sariego: 17:22
Yeah. So yes, Bill, thank you. Once a procedure is added to the Medicare ASC approved procedure list, that is really setting the standards for how and when the commercial payers will follow suit in approving these procedures and reimbursing them in the ASC. Again, this will lower the cost of the delivery of care to the Medicare and commercial insurers and patients, and increase access to care and screening. One other comment, Bill, that I’d like to make, related to the high governmental mix, I mean, our goal is to provide care and access to all, especially in areas where we have underinsured and underserved. What we’re seeing here is that many of the payers, particularly Medicaid payers in many of the states, are following suit with the reimbursement rates of Medicare. And that in an area where you have high governmental payers is really placing an economic strain on these ASCs to provide services. So again, our goal is to provide access and care to all, and Medicare is really setting that standard both on what can be done in the ASC as well as the reimbursement rates, which are impacting not only other commercial but all governmental payers.

Bill Prentice: 18:42
Annie, hallelujah to that, that’s so well stated, because really at the heart of it, if you look at this legislation and the provisions in it, the fundamental goal of it is to drive more care to a more efficient setting that’s going to reduce healthcare cost, both to the taxpayer, to the program, to the beneficiary, and then freeing up dollars to be used elsewhere. And I think it’s really important for people to understand that. And I have to say, we’ve introduced legislation every two years that Kara and I have been at ASCA, and Annie you’ve been involved, and we’ve been fortunate to get a number of provisions in that legislation enacted into law over time. So, we continue to add to it with additional provisions and, I have to say, this is the strongest and most robust piece of legislation that the ASC community has put before Congress in my time. So, I’m really excited about our ability to try and get some of these provisions enacted into law. And obviously, part of that is acknowledging and thanking the great work of our congressional sponsors, who put their names on this legislation. So, we really want to thank Congressman Larson, Congressman Nunes and Senators Blumenthal and Cassidy, and certainly we expect more names to be added to the cosponsors of both those bills. And then really it comes down to our listeners and my ask for them, which is for them to take an active role in helping to advance this legislation, and a great starting place would be to contact your member of Congress and your senators and ask them directly for their support of this legislation. And we have supporting materials to help you to do this that are available on the ASCA website. And I also want you to be an active lobbyist for the ASC community and come to Washington, DC. We have a fly-in scheduled for March 8 and 9, we’ll have more information about that in a future podcast and more information and ASCA communications on our website. But I hope everyone listening will take us seriously and take my request seriously and come visit Washington, DC, meet with your member of Congress, meet with your senators, tell the story about the care you’re providing in your ASC and help us to get this legislation enacted into law. So with that, Kara and Annie, I want to thank you for your work on this legislation and thank you both for coming on the podcast and sharing your insights about it.

Kara Newbury: 21:00
Thanks, Bill.

Annie Sariego: 21:01
Thank you, Bill.

Bill Prentice: 21:02
Before closing, I’d like to thank National Medical Billing Services for their continued support and participation in the ASCA Affiliate Program. For more information about their services, please visit This concludes our discussion. As always, thanks for listening.