The Massachusetts Medical Society (MMS) wishes to be recorded in
opposition to the adoption of emergency regulations concerning the
Determination of Need (DON) process as applied to ambulatory
surgery centers (ASC's). Since 2008, the Department has
expanded its traditional role in the oversight of hospitals to
include ambulatory surgery centers. The MMS is concerned that
the language expressed as a rationale for these emergency
regulations is extreme in its impact on options for health care
reform and movement towards accountable care organizations.
The DON process is a hold-over from the days when the state set
hospital rates. This is no longer the case absent the
MassHealth program's indemnity fee schedule. The language in
the Department's memo to the Public Health Council of January 11,
2012 seems clear that no change in service or site will be
available to an ASC for the foreseeable future. It implies
that services expanded since the 2008 change in the law may be
illegal. Are such facilities to be delicensed?
The rationale for the DON was to control costs and to make sure
that needs for service were met. It was not to restrain
competition. The memo to the PHC sites the flaws and lack of
data or consensus in the process of its advisory board on
ASC's. However, the memo then acts on a reported finding that
"there are no data, either statistical or anecdotal, that would
indicate that there is a need in the traditional sense for any
additional outpatient surgical capacity in Massachusetts." On
this basis, the emergency regulations appear to close the door on
changes of service by ASC's. Hospital based outpatient
surgical facilities do not need a DON for projects less than $25
million but ASC's will need a DON, and be barred from having one,
for any change in service.
Prohibiting the evolution of facilities as we move towards cost
containment and health care financing reform makes no sense.
The DON language from 1994 is not relevant to our current
environment. It should not be used as a weapon to eliminate
ASC's from newly designed health care delivery systems. The MMS
urges the Department of Public Health and the Public Health Council
to rescind the emergency regulations until a new and productive
process is developed for balancing quality and cost in the delivery
of health care.
