Complete Story
10/19/2011
"Under the Dome"
"CASA Legislative & Regulatory Year-in-Review"
by CASA Legislative Advocate Bryce Docherty
Under Gov. Jerry Brown’s first stint as governor, he had the lowest veto percentage in modern history at below 5 percent. Most recently, former Gov. Arnold Schwarzenegger had the highest veto percentage in modern history at approximately 30 percent. Fast forward and this go-around Gov. Brown ended up vetoing just under 14 percent of the approximately 600 bills sent to his desk.
Even though a much lower veto percentage than his predecessor. Gov. Brown made no secret of his frustration that so many proposals were sent to him on topics that he sees as less than mission critical. "Not every human problem needs a law," he groused to reporters in mid-September.
Below is a brief look into how CASA fared on the legislative and regulatory front this year.
SB 100 (Price): ASC Accreditation Oversight
CASA Position: Watch
Status: Signed by Gov. Brown
Summary: This bill enhances oversight the Medical Board of California (MBC) has over their approved accreditation agencies (i.e. AAAHC, AAAASF, JACHO, and CMA IMQ). Therefore, expect some additional downstream paperwork requirements as some of these oversight standards apply to ASCs as well under the existing law definition of “outpatient setting.” However, this bill does NOT require mandatory accreditation, nor does it fix our ongoing Capen licensure problems (i.e. pharmacy permit application). Accreditation still remains an option for centers even under this bill.
However, effective January 1, 2012, centers can expect that their accrediting body will require additional transparency with the MBC as it applies to such things as developing a plan of corrective action for any deficiencies found by the accreditation agencies or the MBC during unannounced inspections. Furthermore, centers will need to submit for approval by their accrediting agency at the time of accreditation, a detailed plan, standardized procedures and protocols to be followed in the event of serious complications or side effects from surgery that would place a patient at high risk of injury or harm or to govern emergency or urgent care situations. ASCs with multiple service locations are now required to have all sites inspected. Accreditation agencies are also now required to conduct a reasonable investigation of the center, including all physicians and surgeons who have an ownership interest, to determine whether there have been any adverse accreditation decisions. ASCs will also need to comply with existing state adverse event reporting requirements and penalties that apply to all other health facilities. (CA Health & Safety Code 1279.1 & 1280.4)
Furthermore, the MBC is required to notify the public, by placing information on its website, whether an ASC is accredited, or the ASC accreditation has been revoked, suspended or placed on probation, or that the ASC has received a reprimand by the accreditation agency and requires the list of ASCs to include such things as contact information of any owners and their medical license numbers, contact information of the facility and the effective and expiration dates of the accreditation. Also, it now requires the accreditation agency and authorizes the MBC to inspect every accredited ASC. The frequency of inspection shall depend upon the type and complexity of the outpatient setting and shall be conducted no less than once every three years by the accreditation agency and as often as necessary by the MBC to ensure the quality of care provided.
There is also a host of requirements on the ASC by the accreditation agency if deficiencies are discovered and the method and manner by which the corrective action plan and timeline must be followed. ASCs are advised to contact their accrediting agency to ascertain how they intend to implement many of these provisions effective January 1, 2012.
Politically, this bill was a response to a series of various media reports detailing recent adverse events and patient deaths in both freestanding and physician office-based ASC settings. Many of these accounts were for elective cosmetic procedures and others pertained to high volume lap-band procedures. CASA took advantage of this media scrutiny and was successful in gaining an early amendment to this bill that would have granted ASCs “deemed” state licensure if they were also accredited. This amendment was later deleted due to fiscal issues.
Support for this bill largely came from the MBC and physician and surgeon organizations within and including the California Medical Association (CMA). Post Capen, the MBC is now solely responsible for oversight of any centers with any fraction of physician ownership. Therefore, they have been seeking additional oversight of the industry for years. Ironically, it was the physician and surgeon community, including CMA that opposed numerous CASA-sponsored legislative attempts to provide a licensure pathway for ASCs under the California Department of Public Health (CDPH).
Lastly, this bill does not “fix” the pharmacy permit issue. That issue is and continues to be addressed under separate legislation as that issue only currently applies to “licensed” centers defined as “surgical clinics” under existing law.
AB 847 (Lowenthal): ASC Pharmacy Permits
CASA Position: Support
Status: Held in the Assembly Health Committee
Summary: This bill was the latest is a long history of legislation to enable an ASC to obtain a pharmacy permit post Capen. Currently only licensed ASCs are eligible to obtain a permit from the California Board of Pharmacy. This legislation and past CASA-sponsored efforts would have allowed an ASC that is also either accredited or Medicare certified to apply and obtain a permit from the Board of Pharmacy. Opposition from the California Department of Public Health (CDPH) and a misunderstanding by the California Board of Pharmacy resulted in this bill being held in the Assembly Health Committee. CASA has committed to finding a new author and sponsoring legislation to address this issue next year.
SB 923 (De Leon): Workers’ Compensation Physician Fee Schedule
CASA Position: Oppose
Status: Failed passage on the Assembly Floor
Summary: This bill requires the Administrative Director (AD) of the Division of Workers’ Compensation (DWC) to convert the workers’ compensation physician fee schedule to an RBRVS methodology by 2013. However, late amendments require this conversion to be “budget neutral” and phased-in over a three-year period beginning in 2013. As many of us know too well, similar regulatory attempts have failed as it would rob “Peter” to pay “Paul” and our ASCs in California rely on “Peter.” Bottom line, this bill would have authorized a massive shift of reimbursement payments away from surgical specialties to increase reimbursements for primary care and occupational medicine. CASA is pleased to report that this bill failed passage on the last night of the legislative session. However, this bill is STILL eligible for consideration next year and we must remain vigilant. CASA rallied opposition along with CMA, applicant attorneys, many surgical specialty physician groups but most importantly Voters Injured at Work (VIAW). This last consumer group was formed after the latest workers’ comp reforms and truly represents ONLY injured workers. Our message that massive reductions to surgical specialty physician fees in workers’ compensation would completely collapse the system was heard loud and clear by VIAW and the Legislature. Furthermore and as we all know, without our surgical specialty physicians, ASCs would no longer be able to compete in the workers’ compensation market.
CASA Continues to Take Workers’ Compensation Fee Schedule Fight to Gov. Jerry Brown
CASA continues to challenge regulations proposed by the DWC that would reduce reimbursement rates to ASCs in the California workers’ compensation system. As previously reported, CASA strongly objected to the original proposal over a year ago that would have reduced these rates by 40-50 percent. This proposal would have tied ASC reimbursement rates to 120 percent of the Medicare ASC rate. The later revised DWC proposal released last December reduced rates by 20 percent by going from the current 120 percent of Medicare HOPD rate to 100 percent of the Medicare HOPD rate.
CASA leadership and staff met with the California Labor & Workforce Development Agency Secretary Marty Morgenstern and his team this past summer. Secretary Morgenstern reports directly to Gov. Brown as it relates to all issues regarding workers’ compensation policy and overall strategic direction of the program. The DWC and the California Department of Industrial Relations are under the authority of Secretary Morgenstern.
Secretary Morgenstern is very knowledgeable about the ASC industry and is open to alternative proposals regarding possible reductions in the ASC fee schedule. However, Secretary Morgenstern feels strongly that ASC costs are significantly less than hospital workers’ compensation costs and that future ASC fee schedule parity with the existing HOPD rate is highly unlikely.
Therefore, CASA continues the process of ascertaining the feasibility of suggesting a rate reduction that is somewhere between the existing rate of 120 percent of the Medicare HOPD rate and the DWC most recent proposal of dropping ASC rates down 20 percent by going to 100 percent of the Medicare HOPD rate. Part of this CASA strategy will most likely include seeking an author and sponsoring legislation next year to proscribe a revised rate in state statute and simply bypass the regulatory process all together going forward.
“If you miss a day “Under the Dome” – you miss a lot!”
