II 

113TH CONGRESS 

1ST SESSION S. 1137 

To amend title XVIII of the Social Security Act to modernize payments 

for ambulatory surgical centers under the Medicare program, and for 

other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 11, 2013 

Mr. WYDEN (for himself, Ms. LANDRIEU, Ms. CANTWELL, Mr. MERKLEY, and 

Mr. BLUMENTHAL) 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, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ambulatory Surgical 

5 Center Quality and Access Act of 2013’’. 


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1 SEC. 2. ALIGNING UPDATES FOR AMBULATORY SURGICAL 

2 CENTER SERVICES WITH UPDATES FOR OPD 

3 SERVICES. 

4 Section 1833(i)(2)(D) of the Social Security Act (42 

5 U.S.C. 13951(i)(2)(D)) is amended— 

6 (1) by redesignating clause (vi) as clause (vii); 

7 (2) in the first sentence of clause (v), by insert8 ing before the period the following: ‘‘and, in the case 

9 of 2014 or a subsequent year, by the adjustment de10 scribed in subsection (t)(3)(G) for the respective 

11 year’’; and 

12 (3) by inserting after clause (v) the following 

13 new clause: 

14 ‘‘(vi) In implementing the system de15 scribed in clause (i) for 2014 and each 

16 subsequent year, there shall be an annual 

17 update under such system for the year 

18 equal to the OPD fee schedule increase 

19 factor specified under subsection 

20 (t)(3)(C)(iv) for such year, adjusted in ac21 cordance with clauses (iv) and (v).’’. 

22 SEC. 3. TRANSPARENCY OF QUALITY REPORTS AND APPLI23 CATION OF VALUE-BASED PURCHASING TO 

24 ASCS. 

25 (a) QUALITY MEASURES.—Paragraph (7) of section 

26 1833(i) of the Social Security Act (42 U.S.C. 1395l(i)) 


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1 is amended by adding at the end the following new sub2 paragraphs: 

3 ‘‘(C) To the extent that quality measures 

4 implemented by the Secretary under this para5 graph for ambulatory surgical centers and 

6 under section 1833(t)(17) for hospital out7 patient departments are applicable to the provi8 sion of surgical services in both ambulatory sur9 gical centers and hospital outpatient depart10 ments, the Secretary shall make reported data 

11 available on the website ‘Medicare.gov’ in a 

12 manner that will permit side-by-side compari13 sons on such measures for ambulatory surgical 

14 centers and hospital outpatient departments in 

15 the same geographic area. 

16 ‘‘(D) For each procedure covered for pay17 ment in an ambulatory surgical center, the Sec18 retary shall publish, along with the quality re19 porting comparisons provided for in subpara20 graph (C), comparisons of the Medicare pay21 ment and beneficiary copayment amounts for 

22 the procedure when performed in ambulatory 

23 surgical centers and hospital outpatient depart24 ments in the same geographic area. 


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1 ‘‘(E) The Secretary shall ensure that an 

2 ambulatory surgery center and a hospital has 

3 the opportunity to review, and submit any cor4 rections for, the data to be made public with re5 spect to the ambulatory surgery center under 

6 subparagraph (C)(ii) prior to such data being 

7 made public.’’. 

8 (b) AMBULATORY SURGICAL CENTER VALUE-BASED

9 PURCHASING PROGRAM.—Section 1833(i) of the Social 

10 Security Act (42 U.S.C. 1395l(i)) is amended by adding 

11 at the end the following new paragraph: 

12 ‘‘(8) VALUE-BASED PURCHASING PROGRAM.— 

13 ‘‘(A) ESTABLISHMENT.—The Secretary 

14 shall establish an ambulatory surgical center 

15 value-based purchasing program (in this sub16 section referred to as the ‘Program’) under 

17 which, subject to subparagraph (I), each ambu18 latory surgical center that the Secretary deter19 mines meets (or exceeds) the performance 

20 standards under subparagraph (D) for the per21 formance period (as established under subpara22 graph (E)) for a calendar year is eligible, from 

23 the amounts made available in the total shared 

24 savings pool under subparagraph (I)(iv), for 

25 shared savings under subparagraph (I), which 


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1 shall be in the form, after application of the ad2 justments under clauses (iv), (v), and (vi) of 

3 paragraph (2)(D), of an increase in the amount 

4 of payment determined under the payment sys5 tem under paragraph (2)(D) for surgical serv6 ices furnished by such center during the subse7 quent year, by the value-based percentage 

8 amount under subparagraph (H) specified by 

9 the Secretary for such center and year. 

10 ‘‘(B) PROGRAM START DATE.—The Pro11 gram shall apply to payments for procedures 

12 occurring on or after January 1, 2015. 

13 ‘‘(C) MEASURES.— 

14 ‘‘(i) IN GENERAL.—For purposes of 

15 the Program, the Secretary shall select 

16 measures from the measures specified 

17 under paragraph (7). 

18 ‘‘(ii) AVAILABILITY OF MEASURE AND

19 DATA.—The Secretary may not select a 

20 measure under this paragraph for use 

21 under the Program with respect to a per22 formance period for a calendar year unless 

23 such measure has been included, and the 

24 reported data available, on the website 


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1 ‘Medicare.gov’, for at least 1 year prior to 

2 the beginning of such performance period. 

3 ‘‘(iii) MEASURE NOT APPLICABLE UN4 LESS ASC FURNISHES SERVICES APPRO5 PRIATE TO MEASURE.—A measure selected 

6 under this paragraph for use under the 

7 Program shall not apply to an ambulatory 

8 surgical center if such center does not fur9 nish services appropriate to such measure. 

10 ‘‘(D) PERFORMANCE STANDARDS.— 

11 ‘‘(i) ESTABLISHMENT.—The Secretary 

12 shall establish performance standards with 

13 respect to measures selected under sub14 paragraph (C)(i) for a performance period 

15 for a calendar year. 

16 ‘‘(ii) ACHIEVEMENT AND IMPROVE17 MENT.—The performance standards estab18 lished under clause (i) shall include levels 

19 of achievement and improvement. 

20 ‘‘(iii) TIMING.—The Secretary shall 

21 establish and announce the performance 

22 standards under clause (i) not later than 

23 60 days prior to the beginning of the per24 formance period for the calendar year in25 volved. 


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1 ‘‘(E) PERFORMANCE PERIOD.—For pur2 poses of the Program, the Secretary shall estab3 lish the performance period for a calendar year. 

4 Such performance period shall begin and end 

5 prior to the beginning of such calendar year. 

6 ‘‘(F) ASC PERFORMANCE SCORE.—The 

7 Secretary shall develop a methodology for as8 sessing the total performance of each ambula9 tory surgery center based on performance 

10 standards with respect to the measures selected 

11 under subparagraph (C) for a performance pe12 riod (as established under subparagraph (E)). 

13 Using such methodology, the Secretary shall 

14 provide for an assessment (in this subsection 

15 referred to as the ‘ASC performance score’) for 

16 each ambulatory surgical center for each per17 formance period. The methodology shall provide 

18 that the ASC performance score is determined 

19 using the higher of its achievement or improve20 ment score for each measure. 

21 ‘‘(G) APPEALS.—The Secretary shall es22 tablish a process by which ambulatory surgery 

23 centers may appeal the calculation of the ambu24 latory surgery center’s performance with re25 spect to the performance standards established 


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1 under subparagraph (D) and the ambulatory 

2 surgery center performance score under sub3 paragraph (E). The Secretary shall ensure that 

4 such process provides for resolution of appeals 

5 in a timely manner. 

6 ‘‘(H) CALCULATION OF VALUE-BASED IN7 CENTIVE PAYMENT.— 

8 ‘‘(i) VALUE-BASED PERCENTAGE

9 AMOUNT.—For purposes of subparagraph 

10 (A), the Secretary shall specify a value11 based percentage amount for an ambula12 tory surgical center for a calendar year. 

13 ‘‘(ii) REQUIREMENTS.—In specifying 

14 the value-based percentage amount for 

15 each ambulatory surgical center for a cal16 endar year under clause (i), the Secretary 

17 shall ensure that such percentage is based 

18 on— 

19 ‘‘(I) the ASC performance score 

20 of the ambulatory surgery center 

21 under subparagraph (F); and 

22 ‘‘(II) the amount of the total sav23 ings pool made available under sub24 paragraph (I)(iii)(I) for such year. 


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1 ‘‘(I) ANNUAL CALCULATION OF SHARED

2 SAVINGS FUNDING FOR VALUE-BASED INCEN3 TIVE PAYMENTS.— 

4 ‘‘(i) DETERMINING BONUS POOL.—In 

5 each year of the Program, ambulatory sur6 gery centers shall be eligible to receive pay7 ment for shared savings under the Pro8 gram only if for such year the sum of— 

9 ‘‘(I) the estimated amount of ex10 penditures under this title for Medi11 care fee-for-service beneficiaries (as 

12 defined in section 1899(h)(3)) for sur13 gical services for which payment is 

14 made under the payment system 

15 under paragraph (2), adjusted for 

16 beneficiary characteristics, and 

17 ‘‘(II) the estimated amount of ex18 penditures under this title for Medi19 care fee-for-service beneficiaries (as so 

20 defined) for the same surgical services 

21 for which payment is made under the 

22 prospective payment system under 

23 subsection (t), adjusted for beneficiary 

24 characteristics, 


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1 is at least the percent specified by the Sec2 retary below the applicable benchmark de3 termined for such year under clause (ii). 

4 For purposes of this subparagraph, such 

5 sum shall be referred to as ‘estimated ex6 penditures’. The Secretary shall determine 

7 the appropriate percent described in the 

8 preceding sentence to account for normal 

9 variation in volume of services under this 

10 title and to account for changes in the cov11 erage of services in ambulatory surgery 

12 centers and hospital outpatient depart13 ments during the performance period in14 volved. 

15 ‘‘(ii) ESTABLISH AND UPDATE

16 BENCHMARK.—For purposes of clause (i), 

17 the Secretary shall calculate a benchmark 

18 for each year described in such clause 

19 equal to the product of— 

20 ‘‘(I) estimated expenditures de21 scribed in clause (i) for such year, and 

22 ‘‘(II) the average annual growth 

23 in estimated expenditures for the most 

24 recent three years. 


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1 Such benchmark shall be reset at the start 

2 of each calendar year, and adjusted for 

3 changes in enrollment under the Medicare 

4 fee-for-service program. 

5 ‘‘(iii) PAYMENTS BASED ON SHARED

6 SAVINGS.—If the requirement under clause 

7 (i) is met for a year— 

8 ‘‘(I) 50 percent of the total sav9 ings pool estimated under clause (iv) 

10 for such year shall be made available 

11 for shared savings to be paid to am12 bulatory surgical centers under this 

13 paragraph; 

14 ‘‘(II) a percent (as determined 

15 appropriate by the Secretary, in ac16 cordance with subparagraph (H)) of 

17 such amount made available for such 

18 year shall be paid as shared savings to 

19 each ambulatory surgery center that 

20 is determined under the Program to 

21 have met or exceeded performance 

22 scores for such year; and 

23 ‘‘(III) all funds made available 

24 under subclause (I) for such year 

25 shall be used and paid as sharing savVerDate Mar 15 2010 03:27 Jun 15, 2013 Jkt 029200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1137.IS S1137

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1 ings for such year in accordance with 

2 subclause (II). 

3 ‘‘(iv) ESTIMATE OF THE TOTAL SAV4 INGS POOL.—For purposes of clause (iii), 

5 the Secretary shall estimate for each year 

6 of the Program the total savings pool as 

7 the product of— 

8 ‘‘(I) the conversion factor for 

9 such year determined by the Secretary 

10 under the payment system under 

11 paragraph (2)(D) divided by the con12 version factor calculated under sub13 section (t)(3)(C) for such year for 

14 covered OPD services, multiplied by 

15 100, and 

16 ‘‘(II)(aa) the product of the esti17 mated Medicare expenditures for sur18 gical services described in clause (i)(I) 

19 furnished during such year to Medi20 care fee-for-service beneficiaries (as 

21 defined in section 1899(h)(3)) for 

22 which payment is made under sub23 section (t) and the average annual 

24 growth in the estimated Medicare ex25 penditures for such services furnished 


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1 to Medicare fee-for-service bene2 ficiaries (as so defined) for which pay3 ment is made under subsection (t) in 

4 the most recent available 3 years, less 

5 ‘‘(bb) the estimated Medicare ex6 penditures for surgical services de7 scribed in clause (i)(I) furnished to 

8 Medicare fee-for-service beneficiaries 

9 for which payment was made under 

10 subsection (t) in the most recent year. 

11 ‘‘(J) NO EFFECT IN SUBSEQUENT CAL12 ENDAR YEARS.—The value-based percentage 

13 amount under subparagraph (H) and the per14 cent determined under subparagraph (I)(iii)(I) 

15 shall apply only with respect to the calendar 

16 year involved, and the Secretary shall not take 

17 into account such amount or percentage in 

18 making payments to an ambulatory surgery 

19 center under this section in a subsequent cal20 endar year.’’. 

21 SEC. 4. ADVISORY PANEL ON HOSPITAL OUTPATIENT PAY22 MENT REPRESENTATION. 

23 (a) ASC REPRESENTATIVE.—The second sentence of 

24 section 1833(t)(9)(A) of the Social Security Act (42 

25 U.S.C. 1395l(t)(9)(A)) is amended by inserting ‘‘and supVerDate Mar 15 2010 03:27 Jun 15, 2013 Jkt 029200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S1137.IS S1137

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1 pliers subject to the prospective payment system (includ2 ing at least one ambulatory surgical center representa3 tive)’’ after ‘‘an appropriate selection of representatives of 

4 providers’’. 

5 (b) EFFECTIVE DATE.—The amendment made by 

6 subsection (a) shall take effect on the date of the enact7 ment of this Act. 

8 SEC. 5. REASONS FOR EXCLUDING ADDITIONAL PROCE9 DURES FROM ASC APPROVED LIST. 

10 (a) IN GENERAL.—Section 1833(i)(1) of the Social 

11 Security Act (42 U.S.C. 1395l(i)(1)) is amended by add12 ing at the end the following: ‘‘In updating such lists for 

13 application in years beginning after the date of the enact14 ment of this sentence, for each procedure that was re15 quested to be included in such lists during the public com16 ment period but which the Secretary does not propose (in 

17 the final rule updating such lists) to so include in such 

18 lists, Secretary shall cite in such final rule the specific cri19 teria in paragraph (b) or (c) of section 416.166 of title 

20 42, Code of Federal Regulations, based on which the pro21 cedure was excluded. If paragraph (b) of such section is 

22 cited for exclusion of a procedure, the Secretary shall iden23 tify the peer reviewed research or the evidence upon which 

24 such determination is based. The Secretary may not use 


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1 or cite section 416.166(c)(7) of such title as criteria or 

2 a basis for exclusion of a procedure from such lists.’’. 

3 (b) EFFECTIVE DATE.—The amendment made by 

4 subsection (a) shall apply to lists of ambulatory surgery 

5 procedures for application in years beginning after the 

6 date of the enactment of this Act. 

Æ 


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