When is an Anesthesiologist “Immediately Available?”

Astonishingly, after decades of discussion, there is still a lot of uncertainty as to what the anesthesia medical direction rules mean by the requirement that the medically-directing anesthesiologist be “immediately available.”

There has never been a numerical time or distance limit for “immediately available,” although there was a substantial debate about potential parameters with the American Society of Anesthesiologists in the 1990s. Thus, in investigating a False Claims Act whistleblower case that began in 2008, auditors from the Department of Health and Human Services Office of the Inspector General (OIG), acting with the Department of Justice, performed an on-site visit to the surgical facilities at the University of California-Irvine to see for themselves how long it would take a supervising anesthesiologist to travel between ORs, including ORs located in different buildings. An auditor from the San Diego OIG field office described the visit to UCI in a May 8, 2013 OIG podcast:

Well, when we arrived at the hospital, they asked us to put on full-body scrubs since the operating room was a sterile area, and there was a chance of unscheduled emergency surgeries at any time. The hospital staff then guided us through the floor and showed us each operating room, and we took careful notes. This is not something that auditors normally do. But since the audit required us to determine whether the anesthesiologist was "immediately available," the tour helped us visualize the distance that an anesthesiologist would have to travel from room to room or building to building and the time that it would take.

The UCI litigation was settled in March of this year for a payment of $1.2 million from the California Board of Regents to the United States.  The anesthesiologist who blew the whistle received a ten-percent relator’s reward, or $120,000.  (The initial complaint alleged further that anesthesia records would be filled out before the case began to make it appear that the anesthesiologist was present and that required post-operative evaluations would routinely be performed by unsupervised residents, in violation of federal regulations. The OIG podcast did not comment on these allegations.)  The Department of Anesthesiology leadership has changed, and UCI reportedly has amended various practices as a result of the OIG/DOJ action.

At last year’s Annual Meeting, the ASA House of Delegates approved the following Definition of “Immediately Available” When Medically Directing:

A medically directing anesthesiologist is immediately available if s/he is in physical proximity that allows the anesthesiologist to return to re-establish direct contact with the patient to meet medical needs and address any urgent or emergent clinical problems. These responsibilities may also be met through coordination among anesthesiologists of the same group or department.

Differences in the design and size of various facilities and demands of the particular surgical procedures make it impossible to define a specific time or distance for physical proximity.

It is unlikely, given the last sentence of the ASA statement, that either the specialty society or for that matter third-party payers, who tend to pay a certain amount of attention to ASA pronouncements on such topics, will adopt any policy specifying the maximum time that an anesthesiologist can take “to re-establish direct contact with the patient to meet medical needs and address any urgent or emergent clinical problems,” or the greatest distance that the anesthesiologist may place between himself or herself and the medically directed OR. Anesthesiologists who work with nurse anesthetists or who train residents will need to continue to apply common-sense, “if the patient were one of your own family members,” types of rules.

The OIG podcast transcript does offer some guidance, nonetheless. First, references to the anesthesiologists overseeing cases in different buildings or on different floors tell us that the burden will be on the medically-directing anesthesiologist to prove that he or she was immediately available if not within the OR suite. If the anesthetizing locations are in fact in separate buildings or on separate floors, it may be wise to make sure that anesthesia time in the case in Building A does not end within a minute—or two, or three, depending on the distance—of the start time of the case in Building B.  The auditors who visited UCI compared the start and stop times of procedures with the locations of the ORs, reviewing both OR logs and the anesthesia records. 

Second, when the audit picks up multiple compliance problems, an adverse outcome is more likely. According to the San Diego auditor, the investigation at UCI also revealed:

• Errors in billing medically directed (modifier QK) cases as personally performed (modifier AA);
• Missing documentation of any post-anesthesia care; and
• Missing physician initials on the anesthesia records.

In other words, the anesthesia records did not uniformly support the services and level of care provided—in various ways.

As a result of the UCI investigation, the OIG decided to review other hospitals to make sure that medically-directed cases are not reported as personally performed.  As we advised readers late last year, the OIG Work Plan for Fiscal Year 2013puts us on notice that:

We will review Medicare Part B claims for personally performed anesthesia services to determine whether they were supported in accordance with Medicare requirements. We will also determine whether Medicare payments for anesthesiologist services reported on a claim with the “AA” service code modifier met Medicare requirements. Physicians report the appropriate anesthesia modifier to denote whether the service was personally performed or medically directed. (CMS’s Medicare Claims Processing Manual, Pub. No. 100-04, ch.12, § 50) The service code “AA” modifier is used for anesthesia services personally performed by an anesthesiologist, and the “QK” modifier is used for medical direction of two, three, or four concurrent anesthesia procedures by an anesthesiologist. The QK modifier limits payment at 50 percent of the Medicare-allowed amount for personally performed services claimed with the AA modifier. Payments to any service provider are precluded unless the provider has furnished the information necessary to determine the amounts due. (Social Security Act, §1833(e).)

Most anesthesiologists know the requirements for reporting medical direction and the basic rules of documentation.

The UCI litigation is a reminder that practices run a real risk when they get careless with seemingly irrational—but mandatory—Medicare rules. If you think that OIG auditors whose suspicions have been aroused will look over your OR suite with the proverbial fine-tooth comb, you are right: they will. We hope that our continuing communications help you minimize the risk of a costly audit.