On July 15, the Centers for Medicare and Medicaid Services (CMS) issued its proposed CY 2023 payment rate regulation for hospital outpatient departments (HOPD) and ambulatory surgery centers (ASC). The proposed regulation will soon be published in the Federal Register; OOSS and interested parties will have an opportunity to submit public comments until September 13, 2022.  As discussed below, the rule ASC rule and payment rates incorporate a number of policies for which OOSS has advocated for many years.

ASC Payment Rate Updates
As reported last year, CMS has agreed, for the period 2019-2023, to update ASC payment rates by the Hospital Market Basket rather than the lower Consumer Price Index-Urban.  OOSS has been a leader in the effort to effectuate this change for over twenty years, seeking to persuade both CMS and Congress of its merits.  Under this new policy, ASCs have received the same update as hospitals, subject to certain adjustments.  In OOSS’ comments on the proposed rule, we will be recommending that CMS maintain permanently the application of the Hospital Market Basket in computing the annual ASC payment update.
Under the ASC payment system, facilities receive a percentage of the relative weight assigned to a code for procedures furnished in HOPDs. The relative weights are re-calibrated each year based on a complex formula that takes into account a number of factors, including changes in hospitals’ costs in providing such services and the mandate that the ASC payment system remain budget-neutral.  

Under the proposed rule, ASC payment rates would be updated by 2.7 percent in 2023 (reflecting the hospital market basket index of 3.1 percent less the MFP adjustment of 0.4 percent).  This is identical to the update being provided to HOPDs.
The following is a representative sampling of the proposed rates:

Proposed 2023 ASC Payment Rates for Ophthalmic Services

Coverage of Drugs Used During Cataract Surgery
For the past couple of years, CMS has provided separate payment for non-opioid pain management drugs and biologicals that function as supplies in the ASC setting when those products are FDA approved, have an FDA-approved indication for pain management or as an analgesic, and have a per-day cost above the HOPD drug packaging threshold.  CMS is proposing separate payment for Dextenza under this authority as well as continued payment for Omidria.  CMS is soliciting comments, for possible inclusion in the final 2023 ASC payment rule, on other such drugs that might qualify for additional payment.
ASC Quality Reporting
Last year, CMS finalized a requirement that, for purposes of CY 2027 payment determinations, would have required that ASCs report on ASC-11, Cataracts: Improvement in Patient’s Visual Function within 90 Days Following Cataract Surgery.  Responding to the strenuous objections of OOSS, and the ophthalmology and ASC communities, CMS is now proposing to change the measure from mandatory to voluntary. 
CMS is also soliciting comments regarding the advisability of establishing quality measures that would apply uniquely to specialty centers, e.g., ophthalmology, GI.  No such measures have been proposed but CMS offered examples of the types of measures that might be developed for the ophthalmology center, e.g., Cataract:  Difference Between Planned and Final Refraction; Cataracts: 20/40 or Better Visual Acuity within 90 Days Following Cataract Surgery; Cataracts: Patient Satisfaction within 90 Days Following Cataract Surgery. 
Payment for New Technology IOLs
ASCs that implant lenses that have secured NTIOL status receive an additional $50 in facility reimbursement. CMS reports that there were no applications submitted by ophthalmics manufacturers requesting NTIOL status for lenses for the 2023 ASC payment rate rulemaking.  As an incentive for innovation in new and innovative monofocal lens technologies, OOSS will be recommending in our comments on the proposed rule that the $50 payment be increased to $100.
Physician Payment Rule: Solicitation of Comments Regarding Establishment of Non-Facility Payments for Cataract and Other Eye Procedures
Advocates of Medicare reimbursement for office cataract surgery have nominated cataract, MIGS, and vitrectomy codes as potentially “misvalued” because there is currently no established non-facility payment rate for these global 90-day surgical procedures.  CMS points out that these are complex surgical eye procedures that require dedicated space, equipment, and personnel, including anesthesia staff (as in the case of Medicare-certified ASCs). Nonetheless, in the proposed physician payment rule published last week, the agency is soliciting comments regarding whether these services are appropriate for performance in a non-HOPD on non-ASC facility.  
In our comments to CMS, OOSS will articulate in detail the significant patient health and safety concerns associated with office cataract surgery.  These facilities are unregulated by Medicare or the states. They are not required to meet the rigorous standards applied to ASCs that govern anesthesia care, staff qualifications, oversight, life safety, infection control, to name just a few.  Given the age and comorbidity status of the vast majority of our patients, only the ASC or HOPD are appropriate sites of service for complex ophthalmic procedures.  
The proposed ASC regulation can be reviewed here.    
The proposed physician payment regulation can be reviewed here.  
OOSS will keep you abreast of further developments as well as instructions for OOSS members to submit public comments on the proposed regulation. Should you have any questions regarding the rule, please contact Michael Romansky, JD at

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