[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1173 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1173

 To amend title XVIII of the Social Security Act to modernize payments 
      for ambulatory surgical centers under the Medicare program.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 9, 2011

 Mr. Wyden (for himself and Mr. Crapo) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend title XVIII of the Social Security Act to modernize payments 
      for ambulatory surgical centers under the Medicare program.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Ambulatory Surgical Center Quality 
and Access Act of 2011''.

SEC. 2. ALIGNING UPDATES FOR AMBULATORY SURGICAL CENTER SERVICES WITH 
              UPDATES FOR OPD SERVICES.

    Section 1833(i)(2)(D) of the Social Security Act (42 U.S.C. 
13951(i)) is amended--
            (1) by redesignating clause (vi) as clause (vii);
            (2) in the first sentence of clause (v), by inserting 
        before the period the following: ``and, in the case of 2012 or 
        a subsequent year, by the adjustment described in subsection 
        (t)(3)(G) for the respective year''; and
            (3) by inserting after clause (v) the following new clause:
                            ``(vi) In implementing the system described 
                        in clause (i) for 2012 and each subsequent 
                        year, there shall be an annual update under 
                        such system for the year equal to the OPD fee 
                        schedule increase factor specified under 
                        subsection (t)(3)(C)(iv) for such year, 
                        adjusted in accordance with clauses (iv) and 
                        (v).''.

SEC. 3. IMPROVING ASC QUALITY MEASURE REPORTING AND APPLYING VALUE-
              BASED PURCHASING TO ASCS.

    (a) Quality Measures.--Paragraph (7) of section 1833(i) of the 
Social Security Act (42 U.S.C. 1395l(i)) is amended--
            (1) in subparagraph (A)--
                    (A) in the first sentence, by inserting 
                ``(beginning with 2014)'' after ``with respect to a 
                year''; and
                    (B) by adding at the end the following: ``Data 
                required to be submitted on measures selected under 
                this paragraph must be on measures that have been 
                selected by the Secretary after consideration of public 
                comments and in accordance with the process described 
                in subparagraph (B). Such measures may include 
                healthcare acquired infection measures appropriate for 
                ambulatory surgery centers, prophylactic IV antibiotic 
                timing, and patient falls. Ambulatory surgical centers 
                determined by the Secretary to furnish a minimal number 
                of items and services under this title with respect to 
                a year shall not be subject to a reduction under this 
                subparagraph for such year.'';
            (2) in subparagraph (B)--
                    (A) by striking ``Except as the Secretary may 
                otherwise provide, the'' and inserting ``Except as 
                provided in the subsequent sentence, the''; and
                    (B) by adding at the end the following: ``In 
                carrying out the previous sentence, the Secretary 
                shall--
                            ``(i) ensure that measures meet the 
                        definition and process for identifying quality 
                        measures under subsections (a) and (b) of 
                        section 931 of the Public Health Service Act;
                            ``(ii) ensure that measures are developed, 
                        selected, and modified in accordance with the 
                        development, selection, and modification 
                        processes for measures established under 
                        section 1890A and in accordance with section 
                        1890;
                            ``(iii) ensure that measures are selected, 
                        and a data submission process is implemented, 
                        under this paragraph in a manner that ensures 
                        ambulatory surgical centers are able to 
                        voluntarily submit data under this paragraph 
                        not later than January 1, 2013;
                            ``(iv) make available an infrastructure 
                        which will allow ambulatory surgery centers to 
                        submit data on such measures through electronic 
                        and other means;
                            ``(v) ensure that the form and manner of 
                        submissions under this paragraph by ambulatory 
                        surgical centers shall include the option of 
                        submitting data with claims for payment under 
                        this part;
                            ``(vi) ensure that a mechanism is developed 
                        to allow an ambulatory surgical center to 
                        attest that the center did not furnish services 
                        applicable to selected measures for use under 
                        the Program established under paragraph (8); 
                        and
                            ``(vii) establish and have in place, by not 
                        later than June 30, 2013, an informal process 
                        for ambulatory surgery centers to seek a review 
                        of and appeal the determination that an 
                        ambulatory surgical center did not 
                        satisfactorily submit data on quality 
                        measures.''; and
            (3) by adding at the end the following new subparagraphs:
                    ``(C) To the extent that quality measures 
                implemented by the Secretary under this paragraph for 
                ambulatory surgical centers and under section 
                1833(t)(17) for hospital outpatient departments are 
                applicable to the provision of surgical services in 
                both ambulatory surgical centers and hospital 
                outpatient departments, the Secretary shall--
                            ``(i) require that both ambulatory surgical 
                        centers and hospital outpatient departments 
                        report data on such measures; and
                            ``(ii) make reported data available on the 
                        website `Medicare.gov' in a manner that will 
                        permit side-by-side comparisons on such 
                        measures for ambulatory surgical centers and 
                        hospital outpatient departments in the same 
                        geographic area.
                    ``(D) For each procedure covered for payment in an 
                ambulatory surgical center, the Secretary shall 
                publish, along with the quality reporting comparisons 
                provided for in subparagraph (C), comparisons of the 
                Medicare payment and beneficiary copayment amounts for 
                the procedure when performed in ambulatory surgical 
                centers and hospital outpatient departments in the same 
                geographic area.
                    ``(E) The Secretary shall ensure that an ambulatory 
                surgery center and a hospital has the opportunity to 
                review, and submit any corrections for, the data to be 
                made public with respect to the ambulatory surgery 
                center under subparagraph (C)(ii) prior to such data 
                being made public.''.
    (b) Ambulatory Surgical Center Value-Based Purchasing Program.--
Section 1833(i) is amended by adding at the end the following new 
paragraph:
            ``(8) Value-based purchasing program.--
                    ``(A) Establishment.--The Secretary shall establish 
                an ambulatory surgical center value-based purchasing 
                program (in this subsection referred to as the 
                `Program') under which, subject to subparagraph (I), 
                each ambulatory surgical center that the Secretary 
                determines meets (or exceeds) the performance standards 
                under subparagraph (D) for the performance period (as 
                established under subparagraph (E)) for a calendar year 
                is eligible, from the amounts made available in the 
                total shared savings pool under subparagraph (I)(iv), 
                for shared savings under subparagraph (I), which shall 
                be in the form, after application of the adjustments 
                under clauses (iv), (v), and (vi) of paragraph (2)(D), 
                of an increase in the amount of payment determined 
                under the payment system under paragraph (2)(D) for 
                surgical services furnished by such center during the 
                subsequent year, by the value-based percentage amount 
                under subparagraph (H) specified by the Secretary for 
                such center and year.
                    ``(B) Program start date.--The Program shall apply 
                to payments for procedures occurring on or after 
                January 1, 2015.
                    ``(C) Measures.--
                            ``(i) In general.--For purposes of the 
                        Program, the Secretary shall select measures 
                        from the measures specified under paragraph 
                        (7).
                            ``(ii) Availability of measure and data.--
                        The Secretary may not select a measure under 
                        this paragraph for use under the Program with 
                        respect to a performance period for a calendar 
                        year unless such measure has been included, and 
                        the reported data available, on the website 
                        `Medicare.gov', for at least 1 year prior to 
                        the beginning of such performance period.
                            ``(iii) Measure not applicable unless asc 
                        furnishes services appropriate to measure.--A 
                        measure selected under this paragraph for use 
                        under the Program shall not apply to an 
                        ambulatory surgical center if such center does 
                        not furnish services appropriate to such 
                        measure.
                    ``(D) Performance standards.--
                            ``(i) Establishment.--The Secretary shall 
                        establish performance standards with respect to 
                        measures selected under subparagraph (C)(i) for 
                        a performance period for a calendar year.
                            ``(ii) Achievement and improvement.--The 
                        performance standards established under clause 
                        (i) shall include levels of achievement and 
                        improvement.
                            ``(iii) Timing.--The Secretary shall 
                        establish and announce the performance 
                        standards under clause (i) not later than 60 
                        days prior to the beginning of the performance 
                        period for the calendar year involved.
                    ``(E) Performance period.--For purposes of the 
                Program, the Secretary shall establish the performance 
                period for a calendar year. Such performance period 
                shall begin and end prior to the beginning of such 
                calendar year.
                    ``(F) ASC performance score.--The Secretary shall 
                develop a methodology for assessing the total 
                performance of each ambulatory surgery center based on 
                performance standards with respect to the measures 
                selected under subparagraph (C) for a performance 
                period (as established under subparagraph (E)). Using 
                such methodology, the Secretary shall provide for an 
                assessment (in this subsection referred to as the `ASC 
                performance score') for each ambulatory surgical center 
                for each performance period. The methodology shall 
                provide that the ASC performance score is determined 
                using the higher of its achievement or improvement 
                score for each measure.
                    ``(G) Appeals.--The Secretary shall establish a 
                process by which ambulatory surgery centers may appeal 
                the calculation of the ambulatory surgery center's 
                performance with respect to the performance standards 
                established under subparagraph (D) and the ambulatory 
                surgery center performance score under subparagraph 
                (E). The Secretary shall ensure that such process 
                provides for resolution of appeals in a timely manner.
                    ``(H) Calculation of value-based incentive 
                payment.--
                            ``(i) Value-based percentage amount.--For 
                        purposes of subparagraph (A), the Secretary 
                        shall specify a value-based percentage amount 
                        for an ambulatory surgical center for a 
                        calendar year.
                            ``(ii) Requirements.--In specifying the 
                        value-based percentage amount for each 
                        ambulatory surgical center for a calendar year 
                        under clause (i), the Secretary shall ensure 
                        that such percentage is based on--
                                    ``(I) the ASC performance score of 
                                the ambulatory surgery center under 
                                subparagraph (F); and
                                    ``(II) the amount of the total 
                                savings pool made available under 
                                subparagraph (I)(iii)(I) for such year.
                    ``(I) Annual calculation of shared savings funding 
                for value-based incentive payments.--
                            ``(i) Determining bonus pool.--In each year 
                        of the Program, ambulatory surgery centers 
                        shall be eligible to receive payment for shared 
                        savings under the Program only if for such year 
                        the sum of--
                                    ``(I) the estimated amount of 
                                expenditures under this title for 
                                Medicare fee-for-service beneficiaries 
                                (as defined in section 1899(h)(3)) for 
                                surgical services for which payment is 
                                made under the payment system under 
                                paragraph (2), adjusted for beneficiary 
                                characteristics, and
                                    ``(II) the estimated amount of 
                                expenditures under this title for 
                                Medicare fee-for-service beneficiaries 
                                (as so defined) for the same surgical 
                                services for which payment is made 
                                under the prospective payment system 
                                under subsection (t), adjusted for 
                                beneficiary characteristics,
                        is at least the percent specified by the 
                        Secretary below the applicable benchmark 
                        determined for such year under clause (ii). For 
                        purposes of this subparagraph, such sum shall 
                        be referred to as `estimated expenditures'. The 
                        Secretary shall determine the appropriate 
                        percent described in the preceding sentence to 
                        account for normal variation in volume of 
                        services under this title and to account for 
                        changes in the coverage of services in 
                        ambulatory surgery centers and hospital 
                        outpatient departments during the performance 
                        period involved.
                            ``(ii) Establish and update benchmark.--For 
                        purposes of clause (i), the Secretary shall 
                        calculate a benchmark for each year described 
                        in such clause equal to the product of--
                                    ``(I) estimated expenditures 
                                described in clause (i) for such year, 
                                and
                                    ``(II) the average annual growth in 
                                estimated expenditures for the most 
                                recent three years.
                        Such benchmark shall be reset at the start of 
                        each calendar year, and adjusted for changes in 
                        enrollment under the Medicare fee-for-service 
                        program.
                            ``(iii) Payments based on shared savings.--
                        If the requirement under clause (i) is met for 
                        a year--
                                    ``(I) 50 percent of the total 
                                savings pool estimated under clause 
                                (iv) for such year shall be made 
                                available for shared savings to be paid 
                                to ambulatory surgical centers under 
                                this paragraph;
                                    ``(II) a percent (as determined 
                                appropriate by the Secretary, in 
                                accordance with subparagraph (H)) of 
                                such amount made available for such 
                                year shall be paid as shared savings to 
                                each ambulatory surgery center that is 
                                determined under the Program to have 
                                met or exceeded performance scores for 
                                such year; and
                                    ``(III) all funds made available 
                                under subclause (I) for such year shall 
                                be used and paid as sharing savings for 
                                such year in accordance with subclause 
                                (II).
                            ``(iv) Estimate of the total savings 
                        pool.--For purposes of clause (iii), the 
                        Secretary shall estimate for each year of the 
                        Program the total savings pool as the product 
                        of--
                                    ``(I) the conversion factor for 
                                such year determined by the Secretary 
                                under the payment system under 
                                paragraph (2)(D) divided by the 
                                conversion factor calculated under 
                                subsection (t)(3)(C) for such year for 
                                covered OPD services, multiplied by 
                                100, and
                                    ``(II)(aa) the product of the 
                                estimated Medicare expenditures for 
                                surgical services described in clause 
                                (i)(I) furnished during such year to 
                                Medicare fee-for-service beneficiaries 
                                (as defined in section 1899(h)(3)) for 
                                which payment is made under subsection 
                                (t) and the average annual growth in 
                                the estimated Medicare expenditures for 
                                such services furnished to Medicare 
                                fee-for-service beneficiaries (as so 
                                defined) for which payment is made 
                                under subsection (t) in the most recent 
                                available 3 years, less
                                    ``(bb) the estimated Medicare 
                                expenditures for surgical services 
                                described in clause (i)(I) furnished to 
                                Medicare fee-for-service beneficiaries 
                                for which payment was made under 
                                subsection (t) in the most recent year.
                    ``(J) No effect in subsequent calendar years.--The 
                value-based percentage amount under subparagraph (H) 
                and the percent determined under subparagraph 
                (I)(iii)(I) shall apply only with respect to the 
                calendar year involved, and the Secretary shall not 
                take into account such amount or percentage in making 
                payments to an ambulatory surgery center under this 
                section in a subsequent calendar year.''.

SEC. 4. APC PANEL REPRESENTATION.

    (a) ASC Representative.--The second sentence of section 
1833(t)(9)(A) of the Social Security Act (42 U.S.C. 1395l(t)(9)(A)) is 
amended by inserting ``and suppliers subject to the prospective payment 
system (including at least one ambulatory surgical center 
representative)'' after ``an appropriate selection of representatives 
of providers''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
take effect on the date of the enactment of this Act.

SEC. 5. ENSURING ACCESS TO SAME DAY SERVICES.

    The conditions for coverage of ambulatory surgical center services 
specified by the Secretary of Health and Human Services pursuant to 
section 1832(a)(2)(F)(i) of the Social Security Act (42 U.S.C. 
1395k(a)(2)(F)(i)) shall not prohibit ambulatory surgical centers from 
providing individuals with any notice of rights or other required 
notice on the date of a procedure if more advance notice is not 
feasible under the circumstances, including when a procedure is 
scheduled and performed on the same day.
                                 <all>