It is common for teaching physicians, with the assistance of medical residents, to perform surgical procedures on two different patients in two different operating rooms over the same period of time. In order to get paid by Medicare, however, the two surgeries must be “overlapping” and not “concurrent.” Two surgeries “overlap” if the teaching physician is present for the “critical or key” portions of both surgeries; otherwise, the two surgeries are “concurrent.” Uncertainly concerning whether and when a particular portion of a surgery is “critical or key” creates challenges for hospitals trying to craft appropriate policies around overlapping and concurrent surgeries. Several recent settlements between the government and providers shed some light on these issues.
Medicare Rules
Unfortunately, Medicare guidance on simultaneous surgeries is scattered. It can be found, for example, in billing rules for teaching physicians, medical record documentation standards, and patient consent requirements for surgical services. In general, the relevant authorities permit billing Medicare for two overlapping surgeries if (i) a teaching surgeon is present during the “critical or key portions of both operations,”1 (ii) the relevant medical record documentation reflects this fact, and (iii) the teaching physician has arranged for a back-up surgeon to immediately assist a resident during non-critical/key portions of the procedures. CMS guidance essentially punts to the teaching physician the question of what it means for a portion of a surgery to be “critical or key.” Specifically, the agency’s guidance provides that a portion of a surgery is “critical or key” if the teaching physician determines it is “critical or key.”2
Recent Settlements
In 2015, a Boston Globe investigative report spurred public outcry over revelations that surgeons were simultaneously performing multiple procedures, some of which led to negative patient outcomes.3 Since then, there have been several FCA settlements between providers and the government over allegedly objectionable practices. Two in particular provide helpful lessons for providers that conduct simultaneous surgeries.
In 2022, Massachusetts General Hospital (MGH), its physician’s organization, and Mass General Brigham entered into a settlement with DOJ and the Massachusetts’ AG to resolve allegations concerning the surgical practices of its teaching physicians. Of note, the government alleged that teaching surgeons:
- booked two or more complicated, high-risk procedures, such as total shoulder replacements or spine surgeries, “at or about the same time, making it impossible for the teaching physician to assure that he could be physically present and ready to participate in the key or critical parts of each surgical procedure”;
- allowed fellows or medical residents who had only been at MGH for a few weeks to perform surgeries without supervision and oversight; and
- did not designate another qualified surgeon to be immediately available to assist as needed in the non-key/critical portions of the overlapping surgeries for which the teaching surgeons were not present.4
The government also alleged that the consent obtained from the patients at issue was not adequate for overlapping surgeries, in that it did not “mention that the surgeon will be out of the room working in another surgery.”5 MGH agreed to settle these claims for $14.6 million and to revise its standardized procedural consent form to notify a patient if their surgeon was scheduled to have an overlapping procedure during the patient’s surgery.
In 2023, the University of Pittsburgh Medical Center, University of Pittsburgh Physicians, and an individual surgeon entered into a settlement with DOJ for $8.5 million to resolve allegations that the surgeon violated Medicare rules prohibiting teaching physicians from billing the government for concurrent surgeries.6 The complaint alleged that the surgeon:
- performed as many as three complex surgical procedures at the same time;
- failed to participate in all the “key and critical” portions of his surgeries, despite attesting that he was with his patients “throughout the entirety of their surgical procedures” or, alternatively, “during all ‘key and critical’ portions of those procedures”; and
- forced patients to endure medically unnecessary anesthesia time.7
According to the complaint, the surgeon would “go back-and-forth between operating rooms and . . . hospital facilities” while his surgical patients “remain[ed] under general anesthesia,” resulting in anesthetized patients being left “for hours at a time while [the Surgeon] attend[ed] to other matters[.]” Furthermore, the complaint contended the Surgeon routinely refused “to delegate surgeries and surgical tasks to other attending physicians[.]”
Takeaways
These recent settlements highlight the types of surgery practices that are the target of government enforcement efforts. To ensure compliance with the Medicare rules for overlapping surgeries, providers should consider:
- updating informed procedural consent forms to clearly notify patients that their surgeon may be absent for portions of their surgery, but will be present during critical portions of the surgical procedure;
- developing institutional guidelines on “critical” or “key” portions of surgeries to ensure that all surgeons understand the requirements for overlapping surgeries;
- exploring checks and balances in surgery scheduling platforms, including the use of controls to limit or monitor surgical scheduling; and
- reviewing a medical record sample to ensure documentation of the teaching physician’s presence and the designation of any required backup surgeons is adequate to meet Medicare billing guidelines.
[vi] Settlement Agreement by and among DOJ on behalf of OIG-HHS and CMS and Defendants James Luketich, M.D., UPMC, and UPP (the “UPMC Settlement”). Additionally, the Surgeon agreed to a corrective action plan and a year-long, third-party audit of his Medicare physician fee services billing.
[vii] Compl. in Partial Intervention at 2, U.S. ex rel. Jonathan D’Cunha, M.D. v. James Luketich. No. 19-cv-495, (W.D. Pa.).
- MCPM, Ch. 12, Section 100.1.2 ↩︎
- The American College of Surgeons advises that surgeons themselves determine which components of each surgery are “critical elements” that require their presence in the operating room. See American College of Surgeons, Statements on Principals (last updated April 2016), https://www.facs.org/about-acs/statements/stonprin. ↩︎
- Jenn Abelson, Jonathan Saltzman, Liz Kowalczyk and editor Scott Allen, Clash in the Name of Care, Boston Globe, (Dec. 2015) https://apps.bostonglobe.com/spotlight/clash-in-the-name-of-care/story/#:~:text=General%20employees%20complained%20about%20at,care%20or%20medical%20practice%20between. ↩︎
- See generally Second Amended Complaint, U.S. ex rel. Wollman v. General Hosp. Corp., No. 15-11-11890-ADB (D. Mass). ↩︎
- Settlement Agreement by and among DOJ and the Massachusetts Attorney General’s Office behalf of the Executive Office of Health and Human Services (“EOHHS”), limited to its role as the single state agency for Medicaid, and on behalf of the GIC and Defendants MGH, MGPO, and Mass General Brigham Inc. (the “MGH Settlement”). ↩︎
- Settlement Agreement by and among DOJ on behalf of OIG-HHS and CMS and Defendants James Luketich, M.D., UPMC, and UPP (the “UPMC Settlement”). Additionally, the Surgeon agreed to a corrective action plan and a year-long, third-party audit of his Medicare physician fee services billing. ↩︎
- Compl. in Partial Intervention at 2, U.S. ex rel. Jonathan D’Cunha, M.D. v. James Luketich. No. 19-cv-495, (W.D. Pa.). ↩︎
