[Congressional Record Volume 159, Number 82 (Tuesday, June 11, 2013)]
[Senate]
[Pages S4215-S4216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. WYDEN (for himself, Mr. Crapo, Ms. Landrieu, Ms. Cantwell, 
        Mr. Merkley, and Mr. Blumenthal):
  S. 1137. A bill to amend title XVIII of the Social Security Act to 
modernize payments for ambulatory surgical centers under the Medicare 
program, and for other purposes; to the Committee on Finance.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1137

       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 2013''.

     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)(2)(D)) 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 2014 
     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 2014 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. TRANSPARENCY OF QUALITY REPORTS AND APPLICATION OF 
                   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 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 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) of the Social Security Act (42 
     U.S.C. 1395l(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

[[Page S4216]]

     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. ADVISORY PANEL ON HOSPITAL OUTPATIENT PAYMENT 
                   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. REASONS FOR EXCLUDING ADDITIONAL PROCEDURES FROM ASC 
                   APPROVED LIST.

       (a) In General.--Section 1833(i)(1) of the Social Security 
     Act (42 U.S.C. 1395l(i)(1)) is amended by adding at the end 
     the following: ``In updating such lists for application in 
     years beginning after the date of the enactment of this 
     sentence, for each procedure that was requested to be 
     included in such lists during the public comment period but 
     which the Secretary does not propose (in the final rule 
     updating such lists) to so include in such lists, Secretary 
     shall cite in such final rule the specific criteria in 
     paragraph (b) or (c) of section 416.166 of title 42, Code of 
     Federal Regulations, based on which the procedure was 
     excluded. If paragraph (b) of such section is cited for 
     exclusion of a procedure, the Secretary shall identify the 
     peer reviewed research or the evidence upon which such 
     determination is based. The Secretary may not use or cite 
     section 416.166(c)(7) of such title as criteria or a basis 
     for exclusion of a procedure from such lists.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to lists of ambulatory surgery procedures for 
     application in years beginning after the date of the 
     enactment of this Act.

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