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ASC Community Welcomes CMS’ Change to HWOW Nursing Requirement

A surgery center describes its experience enrolling in the program

BY SAHELY MUKERJI | DECEMBER 2020

The Centers for Medicare & Medicaid Services' (CMS) recent change to the 24-hour nursing services requirement in its Hospitals Without Walls (HWOW) program will possibly encourage more ASCs to participate in the program.

The change came on November 25, five days after ASCA Board members spoke to CMS Administrator Seema Verma and other CMS officials on how the federal government could best leverage ASCs in light of recent COVID-19 surges. As follow-up to the call, ASCA submitted suggestions to CMS on how the agency could provide more flexibility to ASCs to allow them to handle more outpatient cases redirected from the hospitals.

“We are so thankful that CMS has issued this new guidance to change the 24/7 nursing requirement regardless of patient presence to a 24/7 nursing requirement only when there are patients onsite receiving care,” says Scott Schlesinger, MD, chief medical officer and chief executive officer at Legacy Spine and Neurological Specialists in Little Rock, Arkansas, an HWOW program participant. His ASC had to hire nurses to stay overnight in the facility to comply with HWOW’s 24-hour nursing requirement even when no patients were present. “Financially, it was a ridiculously wasteful cost and, from a staffing perspective, very challenging in this terribly tight market. This is the reason why so few ASCs participated in the program.” Among the more than 5,900 ASCs in this country, only 85 have enrolled in this program so far, he says.

The ASC performs spinal surgeries and was able to offer its patients lumbar interbody fusion 22633, a procedure not on the ASC-payable list, through the HWOW program. “We have done close to 20 lumbar fusions in the past month that would normally have to be done at a hospital due to its exclusion from the ASC payment system for CMS patients,” he says. “In the process, we have allowed these patients to have their surgery in a COVID-free environment. The reported risk of nosocomial COVID-19 infection is around 12 percent for patients being treated for a non-COVID issue in a hospital that treats COVID-19 patients.”

The process of enrolling in the program was not easy, says Allie Mills, chief operating officer at Legacy Surgery Center. “Back in March-April, when the option became available to ASCs to start participating in this program, only three ASCs in Arkansas enrolled in it,” she says. “This is mainly due to the requirements that were needed for ASCs to participate, such as the 24/7 nursing rule, and a lack of knowledge about the program.”

The ASC started the process at the beginning of April and was licensed as a temporary hospital on June 1, Mills says. “There were some gaps in communication between CMS and state health departments that contributed to the delays in acquiring a temporary hospital license.”

Representative Bruce Westerman (AR-4th District) helped tremendously in working with the Arkansas health department alongside the ASC, Schlesinger says. “With any new program there are hurdles and confusion,” he says. “With this HWOW, the main hurdle was that the Arkansas Department of Health (ADH) was not aware of the program when we notified them of our intention to enroll.”

The Alliance for Patient Access & Innovative Care (APAIC) is a policy advocacy association that represents several ASCs in Arkansas, Mills says. “APAIC worked with Senator Missy Irvin, Lieutenant Governor Tim Griffin, Congressman Westerman, Governor Asa Hutchinson and his ADH liaison to educate the state health department about the HWOW program and the benefits it would bring to the people of Arkansas. After about six weeks, the ADH approved our 1135 waiver.”

To be fully up and running as a temporary hospital, the ASC had to have a health department inspection and obtain several new contracts, such as pathology, laboratory services, dietary services and respiratory services that it was not required to have prior to participating in the HWOW program, Mills says. “Securing the 24/7 nursing was the biggest hurdle, however,” she says. “We worked alongside Congressman Westerman who was instrumental in helping educate the leaders of CMS on the struggles that came with 24/7 nursing when patients are not present and the lack of justification of such resources. We are happy that his efforts along with those of ASCA helped bring about this modification of the 1135 Waiver HWOW requirements.”

The ASC is still struggling with a few of its commercial insurances that are not willing to acknowledge its operations as a hospital. “Novitas Solutions administers Medicare in Arkansas and, initially, we had to work with them as well and educate them on the program,” Mills says. “Once aware of the program they were very helpful to us.”

Initially, CMS did not notify ADH about the change in the 24-hour nursing requirement, but the APAIC team worked with Senator Irvin and Governor Hutchinson’s office one more time to get the state’s approval of this much needed policy change, Schlesinger says.

All said and done, “I am very happy from a physician standpoint that our state’s policymakers and leadership, and now CMS, have listened to our appeals to increase patient access to needed surgical care during this pandemic in the safest possible settings,” Schlesinger says.