Image by Lcg from PixabayIn March, the U.S. Department of Justice (DOJ) launched the Anticompetitive Regulations Task Force, an initiative meant to eliminate laws and regulations that “undermine free market competition.”
Ambulatory surgery center (ASC) stakeholders are already playing an important role in the task force’s mission.
“This Antitrust Division will stand against harmful barriers to competition whether imposed by public regulators or private monopolists,” Assistant Attorney General Abigail Slater of the Justice Department’s Antitrust Division said in a statement.
From March 26 through May 27, DOJ’s Anticompetitive Regulations Task Force collected public comments on potentially burdensome state and federal red tape. Hundreds of commenters shared their views during this window, including several with ASC ties.
“We look forward to working with the public and with other federal agencies to identify and eliminate anticompetitive laws and regulations,” Slater continued.
Eliminating ASC regulatory burdens
Certificate of Need (CON) laws were one of the areas of focus for ASC stakeholders.
Broadly, CON laws require health care providers – including ASCs – to obtain state approval before establishing or expanding certain facilities or services. In the ASC space, these laws can limit new facility development, restrict expansion and create regulatory hurdles that some argue favor existing providers, thereby shaping market competition.
Several states have recently enacted significant changes to their CON regulations, including North Carolina, South Carolina and Tennessee, among others.
One ASC commenter called CONs into question by offering a colorful comparison.
“It’s like McDonald’s needing permission from Wendy’s before it could open a new store,” the commenter wrote.
The same commenter also urged the DOJ task force to do away with Medicare’s inpatient-only list.
“A strong incentive for driving care to the ASC setting, in addition to eliminating CON, would be to abolish Medicare’s inpatient-only list, which excludes certain procedures from Medicare payment when performed outside of inpatient settings,” the commenter wrote. “The IPO list overrides the clinical expertise of doctors and [the] desires of patients.”
Another commenter expressed concern over the mandatory Centers for Medicare & Medicaid Services (CMS) Consumer Assessment of Healthcare Providers and Systems Outpatient and Ambulatory Surgery Survey (OAS CAHPS) program for ASCs, which took effect in January 2025.
The commenter – an ASC administrator – argued that compliance requires contracting exclusively with CMS-approved third-party vendors, placing an unfunded administrative and financial burden on small facilities. Noncompliance results in a 2% payment reduction.
The commenter also described the new requirement as duplicative and unnecessary, pointing to quality inspections and patient feedback mechanisms already in place.
“The task force would do well to consider eliminating this unfunded mandate that burdens ASCs, which provide vital surgical care to Medicare beneficiaries,” the ASC administrator emphasized.
Multiple other submissions highlighted reimbursement disparities between hospitals, hospital outpatient departments (HOPDs) and ASCs.
“Independent ASCs provide efficient, high-quality health care and decentralize the health care system,” one commenter explained. “The reimbursement difference between HOPDs and ASCs creates a significant barrier to entry into a space that is already dominated by regional hospital systems, leaving patients with fewer options and a higher cost of health care.”
What ASCA wrote
The Ambulatory Surgery Center Association (ASCA) also submitted comments in response to the DOJ task force.
In doing so, the industry group made four main recommendations.
For starters, ASCA argued that it should be as easy to convert an HOPD to an ASC as it is to convert an ASC into an HOPD.
Converting between an HOPD and an ASC involves significant regulatory, financial and operational considerations. Generally, converting an ASC into a HOPD is easier than the reverse, as ASCs must meet special Medicare Conditions for Coverage while undergoing other licensure requirements.
While hospitals are often subject to more comprehensive regulations, they, in some cases, have more flexibility in what services they can offer and how they structure their facilities.
“The facility could close on a Friday as an ASC and reopen on a Monday as a HOPD, since the facility simply becomes a department of the hospital and does not require a new survey,” ASCA explained.
ASCA additionally flagged the Medicare conversion factor – a tool used to update payment rates annually – as an area of concern.
“CMS must continue use of the hospital market basket as the annual update mechanism for ASC payments, as initially established during the first Trump administration,” ASCA wrote. “This will ensure better alignment of the ASC and HOPD payment systems.”
Finally, ASCA called for the discontinuation of the CMS ASC weight scalar and urged regulators to add more procedures to the ASC Covered Procedures List.
“It is imperative that CMS improves its coordination with the ASC community to allow it to better serve Medicare beneficiaries while generating savings to the Medicare program and taxpayers,” ASCA emphasized. “The Trump administration should pursue policies that encourage competition for outpatient surgery, which will provide the Medicare program and its beneficiaries with a substantial savings opportunity while ensuring continued access to the high-quality care that surgery centers offer and their beneficiaries deserve.”
More on DOJ’s task force
The formation of the Anticompetitive Regulations Task Force is tied to Executive Order 14192, which states that “the policy of the executive branch” is that federal agencies should “alleviate unnecessary regulatory burdens.”
Health care is one of several focus areas for the task force. Others include housing, transportation, agriculture and energy.
Along with reviewing responses from the public, the Task Force is taking feedback from attorneys, economists and other staff from across DOJ’s Antitrust Division.
