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:
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 a chapter in the 2010 AHLA/AAPC Coding Manual entitled, "Deciphering Codes: Fraud & Abuse for Coders and Coding Insight for Healthcare Lawyers."
Anesthesia Resources and LinksBy 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 The ASA originally made the request to the OIG in March of 2009; however, to date, the OIG has not responded.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.
In January 2011, CMS issued a transmittal clarifying the Interpretive Guidelines for the hospital conditions of participation for anesthesia services. This transmittal removes previous interpretive language 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)”. The revised Interpretive Guidelines note that, "there is often no bright line, i.e., no clear boundary, between anesthesia and analgesia. This is particularly the case... with respect to labor epidurals." Hospitals are required to "establish policies and procedures, based on nationally recognized guidelines, that address whether specific clinical situations involve anesthesia versus analgesia... [H]ospital anesthesia services policies and procedures are expected to also address the minimum qualifications and supervision requirements for each category of practitioner who is permitted to provide analgesia services."
On June 1, 2012, the Department of Health and Human Services Office of Inspector General (the “OIG”) issued Advisory Opinion No. 12-06, which provides long-awaited guidance to the health care industry regarding the legal permissibility of an anesthesia delivery service model commonly referred to as the "company model." Insofar as Advisory Opinion No. 12-06 is the initial OIG guidance that specifically focuses on such an arrangement and determines that the factual paradigms presented implicate risks under the Medicare and Medicaid Antikickback Statute (the "AKS"), this Advisory Opinion understandably is capturing broad attention within the medical and legal communities. While OIG Advisory Opinion 12-06 clarifies the almost-axiomatic observation that company model arrangements, especially those that contain the indicia that the OIG historically has identified as problematic under the AKS, certainly have the potential to violate the AKS, the legal permissibility of each company model arrangement should continue to be analyzed based upon each arrangement's unique facts and circumstances. Stated otherwise, OIG Advisory Opinion 12-06 should not be interpreted to mean that all company model frameworks necessarily are violative of the AKS; rather, the Advisory Opinion reinforces the consistent guidance provided by The Health Law Partners that these arrangements need to incorporate the requisite structural safeguards. For further analysis by The Health Law Partners of OIG Advisory Opinion 12-06, click here.
Click here for ASA's June 2011 article "Billing for Anesthesia Services and the QZ Modifier: A Lurking Problem."
Click here for the ASA's FAQs on ACOs.
Click here for an HLP blog regarding an anesthesia care package RAC issue.
Click here for the guidelines regarding the payment rules for anesthesia services and teaching CRNAs.
Click here Conditions of Participation, Hospital and Anesthesia Services
Click here for the Final Revisions to Hospital Interpretive Guidelines Pertaining to Anesthesia
Click here for the 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 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).
Anesthesia and Pain Questions?
Anesthesia and pain inquiries can be directed to Abby Pendleton, Esq. at (248) 996-8510 or (212) 734-0128.