Exceptions To The Rule: What Anesthesiologists Can Do During Medical Direction

There is always, it seems, an exception to every rule—an "exception that proves the rule." It's always "i" before "e," except after "c," right? You can turn right on red, except in those jurisdictions that don't allow it. Exceptions to rules are pervasive throughout our daily life, and they exist in the anesthesia world, as well.

The General Rule

A large number of our anesthesia groups are composed of both anesthesiologists and anesthetists—and many of these utilize a medical direction model. For those groups that medically direct, the doctors are already aware that they must meet the so-called "seven elements," as required by national Medicare rules. There is also the general requirement that you cannot be involved in any activity other than focusing on the cases you are directing. Here's how the Medicare Claims Processing Manual (MCPM), Ch 12, Sec 50, puts it:

A physician who is concurrently furnishing services that meet the requirements for payment at the medically directed rate cannot ordinarily be involved in furnishing additional services to other patients.

That's the general rule. It is the government's intent, then, that medically directing doctors should be focusing their attention exclusively on the cases under their direction, while not personally performing other patient services. Indeed, personally performing a case would normally "break" one's medical direction status. However, as we've noted above, there are often exceptions to every rule.

The General Exceptions

After stating the general rule about not personally performing patient cases while also medically directing, the MCPM goes on to list six exceptions to this general rule—six tasks a medically directing doctor can perform that will not upset the applecart, so to speak. They are as follows:

• 1. Addressing an emergency of short duration in the immediate area;
• 2. Administering an epidural or caudal anesthetic to ease labor pain;
• 3. Periodic (rather than continuous) monitoring of an obstetrical patient;
• 4. Receiving patients entering the operating suite for the next surgery;
• 5. Checking or discharging patients in the recovery room; or
• 6. Handling scheduling matters.

According to the MCPM, these six exceptions "do not substantially diminish the scope of control exercised by the physician and do not constitute a separate service for the purpose of determining whether the requirements for payment at the medically directed rate are met." In other words, engaging in one or more of these tasks while medically directing would not add to your concurrency count and would not negatively affect your medical direction status—as long as you remain available to respond to the immediate needs of the patients in your medically directed rooms. Before pressing forward, it may be helpful to take a look at a couple of these six exceptions in a bit more detail.

It should be noted that an emergency of short duration means exactly that. If a patient "in the immediate area" needs an emergency intubation, that would be an example of an acceptable use of the emergency exception. However, handling an emergency C-section would not be. This is because the C-section constitutes a full-blown anesthesia case and typically lasts more than a short duration. Yes, it's true that "short duration" is left undefined in the regulations. However, a good rule of thumb that many have abided by over the years is 15 minutes or less. If the activity takes you beyond that time, it may be difficult to prove to an auditor that you remained immediately available to handle a need in your medically directed cases.

Let's take a look at another of these exceptions. It is a bit strange that Medicare would allow the medically directing doctor to place a labor epidural, especially when the labor and delivery suite is often located on a different floor as the OR suite. However, there is nothing in the medical direction rules pertaining to this exception that specifies the proximity you must maintain in terms of time and distance with your OR cases. Again, the unwritten 15-minute rule, seems to be a good guide. That is, you don't want a labor epidural placement to be more than 15 minutes away from your OR cases.

Additional Exceptions?

Over the years, there has been an ongoing debate as to whether the MCPM list of exceptions are exhaustive or simply illustrative. That is, if Medicare allows a medically directing anesthesiologist to place a labor epidural, for example, then surely they ought to be able to place a post-op pain epidural—especially since such an epidural is being placed in the same OR suite. This would only seem logically consistent. And that is exactly what convinced many local Medicare carriers—now called Medicare administrative contractors (MACs)—to begin seeing the six exceptions listed in the MCPM as examples of the kinds of tasks that doctors can perform while medically directing cases.

We have received communications from multiple MACs across the country on this issue of whether the six exceptions should be deemed illustrative or exhaustive. As it currently stands, 35 states allow additional exceptions, such as a placing a post-op pain epidural or nerve block or invasive line. For those that adhere to the illustrative position, each MAC may have a slightly different twist on what they would allow in the way of additional exceptions. Some allow the medically directing doctor to give lunch or bathroom breaks to the CRNA. Others allow the doctor to do pretty much whatever they want as long as they remain immediately available to address an issue that may arise in their medically directed rooms. One of the things, however, that has been specifically excluded as an allowed exception—even for MACs that allow post-op pain procedures during medical direction—is the performance of a chronic pain injection. At least one jurisdiction has expressly disallowed this activity. Currently, there are only two states where the MAC has indicated they consider the six MCPM exceptions to be exhaustive and thus will not allow any other activities to be performed while medically directing. That leaves 13 states where we have received no clarifying response. If you have a question about what your MAC's position is in this regard, you can reach out to your account executive or contact us at info@anesthesiallc.com.