Is There a Key to "Critical and Key": Exploring Concurrent Surgery Billing and Ethics
“Do more for less” – that is the reimbursement environment facing hospitals and physicians in America today. It should be no surprise, then, that such providers seek ways to maximize efficiency and allocate appropriate resources, particularly when practitioners in certain specialties are scarce. One such practice has historically involved “concurrent” or “overlapping” surgeries. As seen below, each term has come to refer to specific factual situations, but prior to 2015, these terms were used interchangeably to refer to the general situation in which a surgeon is scheduled to conduct two surgeries in two different operating rooms at the same time (or within similar windows of time). From an efficiency standpoint, this practice maximizes precious operating-room time and makes the most in-demand surgeons more available to the greatest number of patients. In particular, the practice is fairly common at teaching hospitals, where surgical fellows, residents and interns are readily (and eagerly) available to assist in order to increase their experience in the operating room.
An article published by the Boston Globe in 2015 brought this practice to center stage, focusing on the story of Dr. Kirkham Wood at Massachusetts General Hospital (MGH) and his patient Tony Meng. Mr. Meng suffered from one of the unfortunate (but known) side effects of a cervical corpectomy after Dr. Wood operated on him, with assistance, during a concurrent period of time when Dr. Wood was also performing a spinal fusion on an elderly woman a few operating rooms away (1). Notwithstanding an admitted lack of scientific evidence correlating adverse patient outcomes with concurrent surgeries, the article not only set off an internal war at MGH, it also led to an investigation (2) by the Senate Finance Committee, which is responsible for federal government payor programs.
Definitions are Key
As discovered by the Senate Finance Committee, the only guidance from the Centers for Medicare & Medicaid Services (CMS) on this issue is limited to teaching hospitals. Specifically, Medicare Conditions of Participation provide that, where a resident participates in a service, the physician fee schedule payment for the surgery is permitted only if the teaching physician is present for all critical portions of the procedure and immediately available to furnish services during the entire service or procedure (3). The Medicare Claims Manual further clarifies that in order to bill for two “overlapping” surgeries, the physician must be present for all critical “or key” portions of the procedure (4).
Interestingly, CMS appears to recognize some limitation on the efficacy of this approach by stipulating that if the teaching surgeon is scheduled for three concurrent surgical procedures, his or her services are not payable under the physician fee schedule, as the teaching surgeon is deemed to provide only advisory services rather than service to an individual patient (5). Further, the teaching surgeon may begin to become involved in the second procedure only when all of the key portions of the first procedure have been completed (6). None of the terms “key,” “critical” or “immediately” is expressly defined, other than by exception. CMS determined that, as a general rule, opening and closing the surgical field is not a “critical or key” portion of the procedure, and a teaching physician is not “immediately available” if he or she is performing another procedure (7). Outside of these parameters, what constitutes “critical or key” is left to the discretion of the teaching surgeon.
With little guidance from the government, the gap fill for surgeons has become professional-association guidelines, essentially framing a question of law as a matter of ethics. First to respond to the public outcry from the Boston Globe article was the American College of Surgeons (ACS), and shortly thereafter several associations for neurosurgeons, including the AANS, adopted similar guidance in their Position Statement on Intraoperative Responsibility of the Primary Neurosurgeon (the “Position Statement”) (8). The ACS, in its Statement on Principles (the “ACS Principles”), and the AANS, in the Position Statement, distinguish between “concurrent or simultaneous” and “overlapping” surgeries, deeming the former to be inappropriate (9). A “concurrent” surgery occurs when the “critical or key” components occur all or partially at the same time. As with the CMS guidelines, “critical or key” is left to the discretion of the surgeon. Alternatively, “overlapping” surgeries occur in two instances:
(a) The first and most common scenario is when the key or critical elements of the first operation have been completed, and there is no reasonable expectation that the primary attending neurosurgeon will need to return to that operation. In this circumstance, a second operation is started in another operating room while a qualified practitioner performs noncritical components of the first operation — for example, wound closure — allowing the primary neurosurgeon to initiate the second operation. In this situation, a qualified practitioner must be physically present in the operating room of the first operation.
(b) The second and less common scenario is when the key or critical elements of the first operation have been completed and the primary attending neurosurgeon is performing key or critical portions of a second operation in another room. In this scenario, the primary attending neurosurgeon must assign immediate availability in the first operating room to another attending surgeon (10).
The distinction between the two types of surgeries turns upon when the “critical or key” components occur: simultaneously, in whole or in part, versus sequentially. Although still deferring to the surgeon’s discretion, the ACS Principles and the Position Statement attempt to provide some additional guidance to surgeons, defining “critical or key” as portions of an operation “when essential technical expertise and surgical judgment are necessary to achieve an optimal patient outcome (11). Although still largely discretionary, the definition at least provides some parameters for physicians in determining whether their surgical schedule includes “concurrent” or “overlapping” surgeries (12).
The Senate Finance Committee, following its investigation noted above, published a report in December 2016 summarizing its findings and articulating concerns about public safety and improper billing of concurrent and overlapping surgeries (as each is defined above). Specifically, the Committee encouraged CMS to develop specific policies consistent with the ACS Principles, identify the critical portions of surgery (i.e., those not appropriate to be scheduled simultaneously) and develop enforcement mechanisms to monitor compliance with the newly promulgated policies, among other recommendations. As to improper billing, the specific concern pertained to billing for concurrent and overlapping surgeries outside of the teaching?hospital context. The Committee called on CMS to further develop methods to evaluate, regulate and enforce proper billing practices (presumably consistent with the new policies the Committee recommended, as noted above).
While the “key” to overlapping surgeries currently appears to be “discretion,” all surgeons, whether teaching or not, are encouraged to evaluate their current surgical practices in light of the recent professional association guidelines. Whether CMS will take additional action in light of the Senate Finance Committee report is unknown, but hospitals participating in Medicare will undoubtedly begin to proactively develop their own policies if such hospitals are accredited by the Joint Commission. The Joint Commission, which is responsible for accrediting approximately eighty percent (80 percent) of hospitals participating in Medicare, disclosed to the Senate Finance Committee that it expects the hospitals it accredits to “perform surgeries consistent with the ACS’s revised guidance on concurrent and overlapping surgeries” and, commencing in the first quarter of 2017, the Joint Commission anticipates citing, as a deficiency, findings that a “concurrent surgery was performed by a hospital or where the hospital has failed to develop a policy prohibiting such surgeries (13).”
It appears inevitable that policy on this topic will shift regardless of whether the law changes [and notwithstanding the lack of data that such practices (whether “concurrent” or “overlapping”) have any adverse effect on patient outcomes] because it appears that ethical directives, rather than the law, are the driving force. The topic has already proven to be divisive at a local level, as MGH learned following the Boston Globe article, and it remains controversial as an increasing number of plaintiffs’ attorneys seek to draw a causal connection between concurrent surgeries and patient outcomes (14). While this article is not intended to serve as legal advice or a comprehensive review of all applicable law on the topic, surgeons are encouraged to consult local counsel to understand the status of this issue in their locality and the risks associated with performing concurrent or overlapping surgeries.
2. Senate Finance Committee, Concurrent and Overlapping Surgeries: Additional Measures Warranted (Washington, DC, Dec. 6, 2016).
4. CMS, Medicare Claims Processing Manual, Chapter 12: Physicians/Nonphysician Practitioners, Section 100.1.2(A)(2).
7. Id. Section 100.1.2(A).
8. Published by the American Association of Neurological Surgeons, American Board of Neurological Surgery, the Congress of Neurological Surgeons and the Society of Neurological Surgeons.
9. Notably, the ACS Principles and the Position Statement would not be limited to teaching physicians, unlike the CMS billing restrictions.
10. Position Statement, Overlapping Operations; ACS Statement, Section II.D.
11. Position Statement, Definitions; ACS Statement, Definitions.
12. In addition to an intense controversy over whether concurrent, overlapping or both types of surgery should be permitted, the other guidance from the ACS Statement and the Position Statement, causing much debate in the medical field, is that patients should be informed of overlapping operations. See Jenn Abelson, et al., “Clash In the Name of Care,” Boston Globe, October 25, 2015, discussing the termination of Dr. Dennis Burke by Massachusetts General Hospital, and reference to the bitter debates that subsequently arose in Chicago, Milwaukee, Nashville and Syracuse.
13. Page 6, Senate Finance Committee Report.
2017 AANS/CNS Section on Pediatric Neurological Surgery
Nov. 28-Dec. 1, 2017; Houston
2nd Homburg ICP and Hydrocephalus Workshop
Nov. 28-30, 2017; Germany
22nd Instructional Course and 45th Annual Meeting of the Cervical Spine Research Society
Nov. 29, 2017 - Dec. 2, 2017; Hollywood, Fla.
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