Regulatory and enforcement concerns about “concurrent” surgeries have gained traction and visibility in recent years. Medicare payment rules distinguish between “concurrent” and merely “overlapping” surgeries, though published Medicare guidance does not explain this terminology distinction quite so clearly and explicitly. The truth is, pertinent Medicare guidance is embodied in numerous relevant sources, including certain conditions of hospital participation describing medical record documentation standards, patient consent requirements for surgical services, and the teaching physician billing rules themselves.

Of note, Medicare guidance in the Medicare Claims Processing Manual limits billing for teaching physicians’ services to up to two overlapping surgeries involving a single teaching surgeon working with one or more residents. The operative rule is, in order to bill Medicare for a teaching surgeon’s services, (s)he must be present for the “critical or key” portions of the procedure and must remain “immediately available” throughout the rest of the procedure. The “critical or key” portions of a procedure, as one would imagine, vary from procedure to procedure, hospital to hospital, and sometimes even within a given hospital (e.g., from department to department, or from physician to physician). As a practical matter, the “critical or key” portions of any given procedure generally will be as defined by the primary surgeon or by his or her institution (e.g., per department or hospital policy).

In a multiple-surgeries scenario, Medicare guidance provides, therefore, that once all the critical or key portions of one procedure are completed, the teaching physician may become involved in a second procedure, provided that the teaching physician specifies a qualified “backup” surgeon to be immediately available to the resident performing the first procedure. The backup surgeon arrangement is necessary, because the teaching physician cannot be “immediately available” while involved in a second surgery. As a general matter, immediate availability requires that the physician be interruptible and able to return to the first operating room immediately to provide direction and furnish assistance. But if a surgeon is engaged in a second surgery, the concern is that, in case of emergency, (s)he is not readily interruptible and able to return to the first operating room at a moment’s notice.

Finally, documentation is critical when billing for overlapping procedures. At a minimum, per Medicare guidance, the teaching physician must personally document in the medical record that (s)he was physically present during the critical or key portions of each procedure.
For both overlapping surgical procedures to be billable to Medicare as the teaching physician’s services, the critical or key portions of each procedure cannot occur at the same time (because Medicare rules require the teaching physician to be present for such critical or key portions in order to bill for the surgery). If the critical or key portions of one or more procedures that involve the same primary surgeon overlap, then the procedures are “concurrent” surgeries. If two procedures are “concurrent,” then the teaching physician may only bill Medicare for the procedure during which (s)he was actually present during such critical or key portions. Importantly, concurrent procedures, as defined, also potentially present patient consent and/or standard of care concerns, and generally are to be avoided.

The American College of Surgeons (ACS) released a helpful guidance document (its “Statements on Principles,” last updated in April 2016), which outlines a number of best practices and patient care considerations that arise in the context of overlapping and/or concurrent surgeries. Among the issues highlighted by ACS, any overlap should not have a negative impact on the timely or seamless process of the operations, and each patient must be informed about (and consent to) the overlap, including the types and roles of additional practitioners who will participate in the patient’s procedure.

The long and the short is that overlapping surgeries present some billing and compliance risk, particularly for teaching institutions, and warrant a thoughtful approach to scheduling and medical record documentation practices. Reach out to the GME @ Dentons team with your questions and concerns about Medicare billing issues regarding overlapping and concurrent surgeries.