Compliance Checkup: Increased Scrutiny of Concurrent Surgeries

May CTBy Sara Kay Wheeler, JD, CHC and Lauren S. Gennett, JD, MPH, CHC
From Compliance Today, a publication for HCCA members

Would you like to share your surgeon with another patient? Did your surgeon tell you that he/she would not be present for your entire surgery? These are just some of the stirring questions that have been raised in the press and by regulators over the past six months, as the practice of concurrent surgery has gained increased national attention. This article provides a brief overview of Medicare rules for concurrent surgeries, discusses the recent increased public focus on concurrent surgeries, and provides potential considerations for compliance teams to consider.

Generally, concurrent surgeries involve the coordination of overlapping procedures overseen by a single attending surgeon, with certain responsibilities delegated to residents or assistants. Supporters of concurrent surgeries explain that overlapping procedures result in increased efficiencies, reduced patient wait times for surgeries, expanded patient access to in-demand surgeons, and valuable training for residents. In contrast, critics argue that overlapping surgeries increase risks for patients.

Concurrent surgeries are a common practice at many teaching hospitals; for example, a teaching physician may allow a resident to close one procedure while the teaching physician starts a second procedure. In a teaching setting, Medicare will pay for two overlapping surgeries, as long as certain conditions are met.[1] Specifically, the teaching physician must be present during all critical or key portions of both operations, and personally document in the medical record that he/she was physically present during the critical or key portion(s) of both procedures.[2] Further, when a teaching physician is not present during non-critical or non-key portions of the procedure (and is participating in another surgical procedure), he/she must arrange for another qualified surgeon to be immediately available to assist the resident in the first case, should the need arise. Importantly, Medicare allows the teaching physician to apply their personal clinical judgment to determine which part(s) of any given procedure are key or critical.

As detailed below, in addition to Medicare payment requirements, the practice of concurrent surgery also raises broader compliance considerations, including those related to informed consent and patient quality of care. For many years, with the exception of a handful of lawsuits, overlapping surgeries and other issues involving teaching physicians have not been a target of public interest. However, the tide is now turning.

Recent developments
In the fall of 2015, the Boston Globe published an in-depth investigative article regarding concurrent surgeries at Massachusetts General Hospital (MGH). The Boston Globe article detailed a malpractice suit filed by a plaintiff paralyzed during spinal surgery who alleged that his injury was partially due to the fact his surgeon split his time between that operating room and second surgery.[3] The questions raised by the Boston Globe led to a federal and state investigation of MGH, public outcry, and proposed regulation of concurrent surgeries by the Massachusetts Board of Registration in Medicine.[4] The American College of Surgeons has also announced that they will weigh in, convening a special panel of experts to develop guidelines for concurrent surgeries, which is expected to be released in the spring of 2016.[5]

In addition, the Boston Globe investigation spurred significant interest from Congressional leaders. In February of 2016, the Senate Finance Committee sent comprehensive inquiries to 20 hospital systems throughout the country, requesting detailed information on concurrent surgeries.[6] Senate Finance Committee members have expressed concern about current Medicare regulation of concurrent surgeries in the teaching context, as well as the lack of government enforcement of such rules. Accordingly, changes to Medicare regulations or new guidance could very likely be on the horizon.

Compliance considerations
Although new guidance from the American College of Surgeons and new legislation or regulations may be imminent, given the increased focus on concurrent surgeries, it is important for hospitals to review their policies on concurrent surgery now, and be prepared to answer potential questions from physicians, staff, patients, leadership, the press, and others. Below, we outline interim considerations that compliance teams may wish to consider as hospitals confirm and refine processes and policies for concurrent surgeries.

Medicare billing requirements
As outlined above, although the Medicare billing requirements for teaching physicians performing overlapping surgeries provide the attending surgeon with a certain amount of clinical discretion, the Medicare rules also contain clear requirements for back-up surgeons to be immediately available when the attending surgeon becomes involved in a second procedure. Further, the Medicare rules for overlapping surgeries contain technical documentation requirements as well.

Importantly, teaching surgeons and staff likely have varying levels of understanding of the relevant Medicare billing requirements. Accordingly, compliance teams would be well advised to ensure that their organization has a policy regarding concurrent surgeries that, at minimum, comports with the Medicare billing requirements, including documentation requirements. For those with existing policies, this may be a good time to meet with key stakeholders to determine if any refinements to the policy are needed. Further, compliance teams may wish to provide additional education to teaching surgeons and others to remind them of the Medicare billing rules in light of the recent increased scrutiny. Finally, compliance teams could consider whether any process enhancements or adjustments to electronic medical record platforms could further facilitate compliance with Medicare rules.

Patient quality of care
Scientific research regarding the impact of concurrent surgeries on patient outcomes is limited, but existing data suggests there is no difference in patient outcomes.[7] Of course, different stakeholders may have varying perspectives regarding quality implications and risk management. Compliance teams may wish to meet with risk and quality stakeholders as well as hospital leadership to better understand perspectives regarding concurrent surgeries and further refine polices and processes, if necessary.

Informed consent
Although not part of Medicare billing rules for overlapping surgeries, the concept of patient informed consent is significant. Compliance teams would be well advised to ensure that current informed consent processes are transparent regarding surgeon presence in the operating room during surgery, and the extent to which residents under the supervision of an attending surgeon will be involved in a procedure. Importantly, compliance teams should also make sure that such conversations are consistently well-documented as part of the informed consent process.

To be sure, concurrent surgery is an issue that compliance teams should continue to monitor. Compliance teams should be prepared for potential changes in guidance and rules from medical organizations, Congress, and/or the Centers for Medicare & Medicaid Services. However, in the interim, compliance teams would be well advised to ensure that current processes and procedures are comprehensive and implement enhancements as necessary. Finally, as public interest grows, compliance professionals may wish to educate senior leadership and board members regarding this issue, and prepare stakeholders for potential inquiries from patients, the public, and the press, among others.

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[1] CMS: Medicare Claims Processing Manual, Ch. 12 § 100.1.2.
[2] Id.
[3] Jenn Abelson, Jonathan Saltzman, Liz Kowalczyk, et al: “Clash in the Name of Care” Boston Globe, December 19, 2015. Available at
[4] Jonathan Saltzman, Jenn Abelson: “State Acts on Simultaneous Surgeries” Boston Globe, January 7, 2016. Available at
[5] Jonathan Saltzman, Jenn Abelson: “Overlapping Surgeries to Face US Senate Inquiry” Boston Globe, March 13, 2016. Available at
[6] Id.
[7] Michelle M. Mello, Edward H. Livingston: “Managing the Risks of Concurrent Surgeries” JAMA, March 17, 2016. Available at


  1. Terrific article. Definitely a good reason to review the rules with applicable physicians and residents.

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