July 26, 2010

It’s hard to read much on the subject of anesthesia practice management without coming across the phrase “fraud and abuse.” Practitioners of this specialty have been thoroughly indoctrinated in the perils of inadequately or improperly documenting their services. “If it isn’t documented, it didn’t happen,” numerous lecturers – including ABC experts – have said. If the service didn’t happen, submitting a claim for payment may be considered fraudulent. The HHS Office of the Inspector General (OIG), CMS auditors, the Recovery Audit Contractors (RACs) and even private parties who bring qui tam actions under the Civil False Claims Act may launch proceedings that can end up costing the defending anesthesiologist many times the value of the claims judged fraudulent.

“Creative” or false claims may also land anesthesiologists in serious trouble with their state medical licensing authorities. The California Medical Board recently disciplined an anesthesiologist at UC Irvine Medical Center for filling out patient records before surgery.

According to the settlement and Board order, the physician, a former chair of the department, admitted to having filled out and signed a portion of the anesthesia record indicating his participation in the induction, intra-operative and emergence phases of a MAC cataract case performed in 2006. His signature attested to the fact that the patient was “stable” and “comfortable” at each phase – after the pre-anesthesia evaluation, but before the case began. He also admitted in an interview that other attendings supervising residents had engaged in the practice of pre-documenting and signing the anesthesia record before rendering anesthesia services for scheduled procedures at the Medical Center.”

The February 2008 Medicare investigation that apparently led to the state disciplinary proceeding uncovered post-operative records that had been completed while the surgery was still underway.  One completed record showed that anesthesia went well during a procedure that had been postponed until months later.

On the basis of the single cataract case, the California Medical Board charged the anesthesiologist with (1) creating a false record and (2) failing to “maintain adequate and accurate records.” Both of these acts and omissions are spelled out in the California Business and Professions Code, which requires the Division of Medical Quality, i.e., the Board, to take action. Although violating these provisions of the Code could have led to a penalty as severe as revocation of the physician’s license, the Board and the anesthesiologist in the UC Irvine case entered into a “Stipulated Settlement and Disciplinary Order” publicly reprimanding the latter. He was also required to complete approved courses in medical ethics and in medical record keeping. The public reprimand, although it was the lowest level of discipline in the California system, will also be recorded in the National Practitioner Data Bank.

We note that the recent "Clarification of the Interpretive Guidelines for the Anesthesia Services Condition of Participation" updated by CMS on May 21, 2010 make pre-documenting the intra- and post-operative portions of the anesthesia service even less acceptable. Although the Interpretive Guidelines are directions to hospital surveyors, not billing rules, they will almost certainly come under consideration whenever anesthesia documentation is at issue. There would be no way to defend pre-documentation of the following mandatory elements of the intra-operative record:

• Name, dosage, route and time of administration of drugs and anesthesia agents;
• Techniques(s) used and patient position(s), including the insertion/use of any intravascular or airway devices;
• Name and amounts of IV fluids, including blood or blood products if applicable;
• Timed-based documentation of vital signs as well as oxygenation and ventilation parameters; and
• Any complications, adverse reactions, or problems occurring during anesthesia, including time and description of symptoms, vital signs, treatments rendered, and patient’s response to treatment.

Other states have statutes similar to the Medical Quality Act section of the California Business and Professions Code allowing disciplinary measures against physicians who submit fraudulent information. Readers should consider such statutes as one more reason not to cut any corners in documenting anesthesia services.

In 2003, the New Jersey State Board of Medical Examiners revoked the license of an anesthesiologist who was the subject of an eight-count complaint for fraudulent reporting of services. Several of the counts alleged that the anesthesiologist had submitted claims for overlapping periods of time in successive anesthesia patients and had falsified records by inserting the names of three other anesthesiologists into patient records when those physicians had not provided any services.

The Board did not appear to be impressed by patient testimonials to the defending anesthesiologist’s compassion, since he had submitted claims to Medicare knowing that they violated billing regulations and thus failed “to maintain good moral character” or to keep accurate records as required by the Board’s regulations. Evidence of the anesthesiologist’s fraudulent intent – as opposed to the mere sloppiness that he pleaded – “was when he instructed his staff that he would fill in the operative times or when the staff member brought up the issue about double payments, that he would take care of it.”

The other counts in the New Jersey case involved the anesthesiologist’s fraudulent claims to his disability carrier and retention of double payments made by health plans for the same service. It is entirely possible that the Board would have ordered a lesser form of discipline than license revocation if double-billing and adding other physicians’ names to the patient records had been the only violations. Still, this decision serves as further warning that fines, monetary damage awards and even exclusion from the Medicare program are not the only potential consequences of submitting false claims. Public reprimands and other disciplinary measures up to and including the loss of one’s medical license may follow upon a Medicare investigation or even a patient’s or private health insurer’s complaint. We will continue helping clients to comply fully with the rules governing their claims submissions, as well as to share compliance information with the broader anesthesia community.

Sincerely,

Tony Mira
President and CEO