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Nebraska Changes Law to Allow Overnight Stays at ASCs


On August 10, 2020, Nebraska lifted a definitional requirement that prohibited ambulatory surgical centers (“ASCs”) from scheduling surgeries that would result in the patient being kept at the ASC past midnight. This change, made as part of LB783, which is set to become effective on November 13, 2020, finally aligns Nebraska’s ASC licensure requirements with Medicare’s ASC rules, thereby providing greater flexibility for ASCs operating within Nebraska to schedule afternoon and evening surgeries.

Medicare defines an ASC as a distinct entity that operates exclusively for the purpose of providing surgical services to patients who will not require hospitalization as a result of the surgery. Along those lines, the Medicare rules specify that surgeries performed in an ASC must be limited to those that ordinarily would not require the patient to be kept at the ASC for more than 24 hours. Such 24-hour period begins when the patient leaves the ASC’s waiting area to begin pre-operative preparations, and it ends when he or she is discharged from the ASC following any post-operative recovery period. The Medicare rules do not restrict ASCs from keeping patients at the ASC overnight (i.e., past midnight), so long as they do not stay more than 23 hours and 59 minutes from the time at which they are admitted to the ASC.

Until the recent change, Nebraska law defined an ASC as a facility where surgical services are provided to persons not requiring hospitalization who are admitted to and discharged from such facility within the same working day and, thus, not permitted to stay overnight at such facility. This meant that, despite Medicare’s permissiveness, Nebraska ASCs could not retain patients past midnight of the day of their admission to the ASC. For example, a procedure requiring the patient to stay at an ASC for a total of 12 hours needed to be scheduled before 12 p.m., despite that Medicare would have allowed the procedure to start later in the day as long as the patient was discharged within 24 hours following his or her admission.

The recent legislation removed the requirement that patients be discharged by midnight, and instead allows patients to stay overnight so long as they are discharged within 23 hours and 59 minutes of admission, in line with the Medicare requirements. Thus, Nebraska law now permits a 12-hour procedure to be scheduled later in the day, allowing ASCs to potentially schedule more procedures per day. Of course, such changes may well impact how Nebraska ASCs currently operate with respect to patient scheduling, ASC staffing, and accommodations and services for family members who may be at the ASC past normal business hours.

If you have questions about the recent change to Nebraska’s definition of an ambulatory surgical center and the impacts thereof, please contact any member of the Koley Jessen Health Law Practice.

*Special thanks to our new Associate, Raquel Boton for her help in writing this article.

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