I 

112TH CONGRESS 

1ST SESSION H. R. 2108 

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

for ambulatory surgical centers under the Medicare program. 

IN THE HOUSE OF REPRESENTATIVES 

JUNE 3, 2011 

Mr. SESSIONS (for himself, Mr. LARSON of Connecticut, Ms. BERKLEY, and 

Mr. CASSIDY) introduced the following bill; which was referred to the 

Committee on Energy and Commerce, and in addition to the Committee 

on Ways and Means, for a period to be subsequently determined by the 

Speaker, in each case for consideration of such provisions as fall within 

the jurisdiction of the committee concerned 

A BILL 

To amend title XVIII of the Social Security Act to modernize 

payments for ambulatory surgical centers under the 

Medicare program. 

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 2011’’. 


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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)) 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 2012 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 2012 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).’’. 


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1 SEC. 3. IMPROVING ASC QUALITY MEASURE REPORTING 

2 AND APPLYING VALUE-BASED PURCHASING 

3 TO ASCS. 

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

5 1833(i) of the Social Security Act (42 U.S.C. 1395l(i)) 

6 is amended— 

7 (1) in subparagraph (A)— 

8 (A) in the first sentence, by inserting ‘‘(be9 ginning with 2014)’’ after ‘‘with respect to a 

10 year’’; and 

11 (B) by adding at the end the following: 

12 ‘‘Data required to be submitted on measures se13 lected under this paragraph must be on meas14 ures that have been selected by the Secretary 

15 after consideration of public comments and in 

16 accordance with the process described in sub17 paragraph (B). Such measures may include 

18 healthcare acquired infection measures appro19 priate for ambulatory surgery centers, prophy20 lactic IV antibiotic timing, and patient falls. 

21 Ambulatory surgical centers determined by the 

22 Secretary to furnish a minimal number of items 

23 and services under this title with respect to a 

24 year shall not be subject to a reduction under 

25 this subparagraph for such year.’’; 

26 (2) in subparagraph (B)— 


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1 (A) by striking ‘‘Except as the Secretary 

2 may otherwise provide, the’’ and inserting ‘‘Ex3 cept as provided in the subsequent sentence, 

4 the’’; and 

5 (B) by adding at the end the following: ‘‘In 

6 carrying out the previous sentence, the Sec7 retary shall— 

8 ‘‘(i) ensure that measures meet the 

9 definition and process for identifying qual10 ity measures under subsections (a) and (b) 

11 of section 931 of the Public Health Service 

12 Act; 

13 ‘‘(ii) ensure that measures are devel14 oped, selected, and modified in accordance 

15 with the development, selection, and modi16 fication processes for measures established 

17 under section 1890A and in accordance 

18 with section 1890; 

19 ‘‘(iii) ensure that measures are se20 lected, and a data submission process is 

21 implemented, under this paragraph in a 

22 manner that ensures ambulatory surgical 

23 centers are able to voluntarily submit data 

24 under this paragraph not later than Janu25 ary 1, 2013; 


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1 ‘‘(iv) make available an infrastructure 

2 which will allow ambulatory surgery cen3 ters to submit data on such measures 

4 through electronic and other means; 

5 ‘‘(v) ensure that the form and manner 

6 of submissions under this paragraph by 

7 ambulatory surgical centers shall include 

8 the option of submitting data with claims 

9 for payment under this part; 

10 ‘‘(vi) ensure that a mechanism is de11 veloped to allow an ambulatory surgical 

12 center to attest that the center did not fur13 nish services applicable to selected meas14 ures for use under the Program established 

15 under paragraph (8); and 

16 ‘‘(vii) establish and have in place, by 

17 not later than June 30, 2013, an informal 

18 process for ambulatory surgery centers to 

19 seek a review of and appeal the determina20 tion that an ambulatory surgical center did 

21 not satisfactorily submit data on quality 

22 measures.’’; and 

23 (3) by adding at the end the following new sub24 paragraphs: 


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

2 implemented by the Secretary under this para3 graph for ambulatory surgical centers and 

4 under section 1833(t)(17) for hospital out5 patient departments are applicable to the provi6 sion of surgical services in both ambulatory sur7 gical centers and hospital outpatient depart8 ments, the Secretary shall— 

9 ‘‘(i) require that both ambulatory sur10 gical centers and hospital outpatient de11 partments report data on such measures; 

12 and 

13 ‘‘(ii) make reported data available on 

14 the website ‘Medicare.gov’ in a manner 

15 that will permit side-by-side comparisons 

16 on such measures for ambulatory surgical 

17 centers and hospital outpatient depart18 ments in the same geographic area. 

19 ‘‘(D) For each procedure covered for pay20 ment in an ambulatory surgical center, the Sec21 retary shall publish, along with the quality re22 porting comparisons provided for in subpara23 graph (C), comparisons of the Medicare pay24 ment and beneficiary copayment amounts for 

25 the procedure when performed in ambulatory 


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1 surgical centers and hospital outpatient depart2 ments in the same geographic area. 

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

4 ambulatory surgery center and a hospital has 

5 the opportunity to review, and submit any cor6 rections for, the data to be made public with re7 spect to the ambulatory surgery center under 

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

9 made public.’’. 

10 (b) AMBULATORY SURGICAL CENTER VALUE-BASED

11 PURCHASING PROGRAM.—Section 1833(i) is amended by 

12 adding at the end the following new paragraph: 

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

14 ‘‘(A) ESTABLISHMENT.—The Secretary 

15 shall establish an ambulatory surgical center 

16 value-based purchasing program (in this sub17 section referred to as the ‘Program’) under 

18 which, subject to subparagraph (I), each ambu19 latory surgical center that the Secretary deter20 mines meets (or exceeds) the performance 

21 standards under subparagraph (D) for the per22 formance period (as established under subpara23 graph (E)) for a calendar year is eligible, from 

24 the amounts made available in the total shared 

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


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1 shared savings under subparagraph (I), which 

2 shall be in the form, after application of the ad3 justments under clauses (iv), (v), and (vi) of 

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

5 of payment determined under the payment sys6 tem under paragraph (2)(D) for surgical serv7 ices furnished by such center during the subse8 quent year, by the value-based percentage 

9 amount under subparagraph (H) specified by 

10 the Secretary for such center and year. 

11 ‘‘(B) PROGRAM START DATE.—The Pro12 gram shall apply to payments for procedures 

13 occurring on or after January 1, 2015. 

14 ‘‘(C) MEASURES.— 

15 ‘‘(i) IN GENERAL.—For purposes of 

16 the Program, the Secretary shall select 

17 measures from the measures specified 

18 under paragraph (7). 

19 ‘‘(ii) AVAILABILITY OF MEASURE AND

20 DATA.—The Secretary may not select a 

21 measure under this paragraph for use 

22 under the Program with respect to a per23 formance period for a calendar year unless 

24 such measure has been included, and the 

25 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 

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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. APC PANEL REPRESENTATION. 

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

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

24 U.S.C. 1395l(t)(9)(A)) is amended by inserting ‘‘and sup25 pliers subject to the prospective payment system (includVerDate Mar 15 2010 02:31 Jun 09, 2011 Jkt 099200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H2108.IH H2108

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1 ing at least one ambulatory surgical center representa2 tive)’’ after ‘‘an appropriate selection of representatives of 

3 providers’’. 

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

5 subsection (a) shall take effect on the date of the enact6 ment of this Act. 

7 SEC. 5. ENSURING ACCESS TO SAME DAY SERVICES. 

8 The conditions for coverage of ambulatory surgical 

9 center services specified by the Secretary of Health and 

10 Human Services pursuant to section 1832(a)(2)(F)(i) of 

11 the Social Security Act (42 U.S.C. 1395k(a)(2)(F)(i)) 

12 shall not prohibit ambulatory surgical centers from pro13 viding individuals with any notice of rights or other re14 quired notice on the date of a procedure if more advance 

15 notice is not feasible under the circumstances, including 

16 when a procedure is scheduled and performed on the same 

17 day. 

Æ 


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