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Clearing the COVID-19 surgical backlog: Compliance implications of overlapping surgeries

Sara Brinkmann (sbrinkmann@kslaw.com) is a Partner in the Houston office of King & Spalding, Lauren Slive Gennett (lgennett@kslaw.com) and Isabella Wood (iwood@kslaw.com) are Senior Associates in the Atlanta office of King & Spalding.

For years, healthcare providers, including hospitals and surgical centers, have relied on the practice of overlapping surgeries to maximize patient access to care, physician efficiency, and utilization of operating suites. In general, the term overlapping surgeries refers to situations where one lead attending surgeon is responsible for procedures that overlap in time. As an example, the lead surgeon is present for and performs the key or critical portions of Procedure 1, and then a resident physician closes the surgical site while the lead surgeon begins Procedure 2. In contrast, the term concurrent surgeries is often used to describe situations where the key or critical portions of more than one procedure are simultaneous, and therefore the lead surgeon who is responsible for both is unable to be present for the entirety of both key and critical portions of the procedures.

Now more than ever, healthcare providers may be considering adopting or expanding the scheduling of overlapping surgeries to address backlogs created due to elective procedure cancellations during the COVID-19 pandemic. Although overlapping surgery practices have the positive effect of increasing patient care, surgical efficiency, and operating room capacity, healthcare providers should be mindful of compliance implications. Indeed, government enforcement actions and media scrutiny in this area has increased considerably in the last seven years. As such, healthcare providers would be well advised to confirm that their overlapping surgery policies and practices comply with the Centers for Medicare & Medicaid Services (CMS) rules and industry standards.

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