The Health Law Partners, P.C. is a unique healthcare law firm with lawyers who understand the multitude of legal, regulatory and contract issues facing anesthesiologists and chronic pain management physicians and practices. Since the time that the American Society of Anesthesiologists (“ASA”) issued its compliance guide addressing the specific risk factors in anesthesia billing and the OIG issued its voluntary compliance program guidance for physician practices, anesthesiologists/anesthesia practices have understood the importance of implementing and maintaining compliance programs. With the permanent implementation of the Medicare Recovery Audit Contractor (“RAC”) program and the Office of Inspector General (OIG)’s focus on interventional pain, compliance continues to be of particular importance in the anesthesia and pain management field.

Abby Pendleton, Esq. one of the founders of The Health Law Partners, P.C., has worked with anesthesia and pain practices around the country for over a decade. The firm can assist anesthesia and pain practices in a broad array of areas, including but not limited to:

• Exclusive contracts;
• Compliance Programs addressing specific anesthesia and pain management risk areas, including without limitation:
• Medical direction elements and documentation requirements
• Anesthesia time
• OB anesthesia billing
• Acute/post-op pain and invasive monitoring lines
• Medical necessity and documentation for chronic pain procedures
• Incident-to services
• Compliance Education and In-services;
• Development of narcotic agreements;
• Regulatory and fraud and abuse (e.g., Stark and Anti-kickback) analysis and guidance with regard to proposed ventures and relationships;
• Corporate and transactional matters;
• Employment and independent contractor agreements;
• Appeals of Medicare and other payor denials;
• Staff privilege matters;
• HIPAA; and
• The Red Flag Rules

The attorneys of The Health Law Partners also assist billing and management companies specializing in anesthesia and pain management.

Ms. Pendleton regularly speaks and writes on anesthesia and pain management healthcare law topics.  She also authored chapter for the forthcoming in 2010 AHLA/AAPC Coding Manual entitled, "Legal/Regulatory/Fraud & Abuse/Compliance/Reimbursement Issues associated with Anesthesiology Coding."

Anesthesia Resources and Links:

By letter dated June 16, 2010, the American Society of Anesthesiologists (“ASA”) continued its efforts to request that the OIG intervene to issue a Special Advisory Bulletin prohibiting what is called the anesthesia “company model.”   The ASA originally made the request to the OIG in March of 2009; however, to date, the OIG has not responded.  Given that the company model has been gaining traction among ambulatory service center (“ASC”) owners, the ASA renewed its request and also attached an article published in March of 2010 specifically discussing the risks and concerns presented by the company model.   The anesthesia company model involves the creation of a separate anesthesia company by the same or similar owners of the ASC.  The establishment of this company essentially allows the owners of the ASC to share in the profits earned through the provision of anesthesia services at the ASC.   The anesthesia company employs the anesthesia providers and bills for the professional anesthesia services.  The same anesthesiologists who once held a professional service contract to provide anesthesia at the ASC and bill for those services are now required to be employed by the anesthesia company in order to continue to provide anesthesia services for facility patients.  The ASA asserts that the company model is designed to incentivize over-utilization for anesthesia services since the owners of the ASC also own the anesthesia company and have a stake in the profits generated from anesthesia billing.  The ASA notes that this problem leads to increases in the cost of care and may subject patients to unnecessary services.  Moreover, the ASA takes the position that the company model results in anesthesia providers essentially being required to pay remuneration to the facility for the ability to provide anesthesia at the facility.  Conversely, ASC owners respond that they have structured these arrangements to comply with the Anti-Kickback Statute.

On May 21, 2010, CMS issued a new transmittal clarifying the interpretive guidelines for the hospital conditions of participation for anesthesia services.   The transmittal serves to revise Appendix A “Survey Protocol, Regulations and Interpretive Guidelines for Hospitals”.

Consistent with the CMS December 11, 2009 memorandum, the transmittal confirms that “The administration of medication via an epidural or spinal route for the purposes of analgesia, during labor and delivery, is not considered anesthesia and therefore is not subject to the anesthesia supervision requirements at 42 CFR 482.52(a)”.   CRNAs providing “anesthesia” as opposed to “analgesia”  require physician supervision unless such services are provided in an “Opt-Out State.” (Note: Since the issuance of the 2001 CMS regulation permitting opt-outs, 15 states have formally opted-out).   In particular, a CRNA administering general, regional and monitored anesthesia care must be supervised either by the operating practitioner who is performing the procedure, or by an anesthesiologist who is immediately available.  According to the transmittal, “immediately available” requires that the anesthesiologist is physically located within the same area as the CRNA “e.g., in the same operative/procedural suite, or in the same labor and delivery unit, and not otherwise occupied in a way that prevents him/her from immediately conducting hands-on intervention, if needed.”

Notably, this transmittal changes earlier revisions with respect to the post-anesthesia evaluation.  With respect to outpatient surgery, although the transmittal reflects that the post-anesthesia evaluation must be completed within 48 hours after surgery, the language requiring that the evaluation be completed prior to discharge has now been deleted.  Click here to view Transmittal 59.

The ASA has posted template documents to assist anesthesia providers with compliance with the new CMS Interpretive Guidelines for the Hospital Conditions of Participation as they relate to anesthesia.  Click here to view these templates.  

Click here for an HLP blog regarding an anesthesia care package RAC issue.

Click here for the new guidelines regarding the new payment rules for anesthesia services and teaching CRNAs.

Click here for the Final Revisions to Hospital Interpretive Guidelines  Pertaining to Anesthesia

Click here for the new MLN article on Teaching Anesthesiologists and Teaching CRNAs

Click here to access the Anesthesia regulations and Anesthesia rules

Click here to access the Medicare Claims Processing Manual

Click here to access the OIG Report of Medicare Payments for Facet Joint Injections.

Click here to access the OIG Compliance Program Guidance for Physicians

Click here to access the National Coverage Provision for Anesthesia

Click here to access the CMS Anesthesia Page

U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 2009 WL 129888 (C.A. 3Pa., January 21, 2009)

United States v. Martinez, Nos. 06-3882/4206 (6th Cir. Dec. 1, 2009).