Overlapping surgeries is a practice that has been used for many years by healthcare providers (such as hospitals and surgical centers). This practice generally refers to situations where one lead attending surgeon is responsible for multiple surgical procedures that overlap in time. For example, the lead surgeon is present for and performs the key or critical portions of a procedure, then a resident physician closes the surgical site while the lead surgeon begins a second procedure. In contrast, the term “concurrent surgery” is frequently used to describe situations where the key or critical portions of more than one procedure occur at the same time; thus, the lead surgeon is unable to be present for the key or critical portions of both procedures.
Overlapping surgeries have many benefits, including maximizing patient access to care and in-demand surgeons, as well as enhancing efficiency of physician time and surgical rooms. At the same time, engaging in overlapping surgeries requires consideration of applicable rules and requirements for providers. Government enforcement scrutiny, notable settlements, and media interest in this area have increased considerably in the last 10 years. More than ever, providers should consider reviewing their overlapping surgery policies and practices to confirm compliance with applicable Centers for Medicare & Medicaid Services (CMS) rules, guidance, and industry standards.
Overview of overlapping surgeries
Overlapping surgeries occur in both the teaching hospital setting (frequently with the assistance of residents or fellow surgeons) and the nonteaching hospital setting. In teaching settings, CMS regulations contain requirements that must be followed for billing the physician professional fees when a teaching physician is responsible for two overlapping procedures. Specifically, to bill professional fees, CMS requires that the teaching physician be present during all key and critical portions of both overlapping operations and document in the medical record that they were physically present during the key and critical portions of both procedures.[1]
Notably, CMS does not specifically define each procedure’s key or critical portions. CMS regulations do provide that, in the case of surgical, high-risk, or other complex procedures, the “teaching physician’s presence is not required during opening and closing of the surgical field” for surgeries and that the “teaching physician must be present during the entire viewing” of a procedure performed through an endoscope. Apart from those regulations, CMS gives the teaching physician the discretion to determine which parts of each procedure are key or critical.
If the teaching physician is not present during critical portions of the procedure, CMS requires that they must be immediately available to return to the procedure during the entire service or procedure, if needed. If the teaching physician is not immediately available, the teaching physician must arrange for or ensure another qualified surgeon is immediately available to assist in the first case, should the need arise.[2] For three overlapping surgeries, CMS classifies the role of the teaching surgeon as a supervisory service to the hospital, which is not billable to government payers.
In contrast, in the nonteaching setting, CMS regulations do not contain specific requirements for overlapping surgeries. Nevertheless, industry groups, including the American College of Surgeons (ACS), have released guidance on the topic that applies in all settings (teaching and nonteaching).
The ACS Statements on Principles states that concurrent surgeries are not appropriate in any setting. ACS defines concurrent operations as surgical procedures that “occur when the critical or key components of the procedures for which the primary attending surgeon is responsible are occurring all or in part at the same time.”[3] While the ACS Statements on Principles are not enforceable laws, surgeons who are fellows of the ACS pledge “to live in strict accordance with the College’s principles and regulations” as a condition of Fellowship in the College.
While CMS does not differentiate between the terms “overlapping” and “concurrent” in its regulations and guidance, CMS does not make payment under the Medicare Physician Fee Schedule for concurrent procedures in the teaching setting because teaching surgeons are required to be present for the key and critical parts of all procedures.[4]
In addition, it is also important to consider CMS’s Conditions of Participation and state laws governing informed consent, which apply in teaching and nonteaching settings.