The involvement of residents in surgical procedures is a common practice in medical education. However, this practice is under increasing scrutiny from government enforcement agencies due to concerns over compliance with regulations and proper billing practices. Recently, a $15 million settlement in Texas to settle such claims where a medical center billed for concurrent heart surgeries in violation of Medicare teaching physician and informed consent regulations.[1]
The use of residents during surgery and billing for concurrent surgeries may lead to violations of Medicare teaching physician and informed consent regulations which, in turn, may trigger a False Claims Act (“FCA”) violation for the amounts billed to a federal payor. The settlement involving Baylor St. Luke’s Medical Center, Baylor College of Medicine, and Surgical Associates of Texas P.A. underscores the importance of ensuring that while using residents during surgery is permissible, teaching hospitals should avoid running concurrent surgeries while delegating complicated tasks to unqualified medical residents. The settlement resolved allegations that the surgeons failed to attend the surgical “timeout” to assess risk, falsely attesting that they were present for the entire operation even when they stepped out to attend a concurrent surgery, failed to designate a backup surgeon, and neglected to inform patients that the surgeon would be leaving the room to perform a concurrent operation.
Medicare requirements specify that Medicare pays for services when (1) a physician personally provides the service, (2) residents provide the service when teaching physicians are physically present during critical or key service parts, or (3) teaching physicians may bill Medicare for lower and mid-level evaluation and management (“E/M”) services provided by residents if they are providing E/M services with a graduate medical education program granted a primary care exception.[2] Moreover, patients have a right under federal and state law to choose their provider and delegating the surgery to another, such as a resident, without the patient’s knowledge is not only potentially violative of patients’ rights, but, in the case of an unqualified medical resident, places the patient in danger and increases legal exposure for both the provider and the hospital.
Understanding the nuances of using residents during surgery and its implications for government enforcement is essential for healthcare providers to ensure adherence to legal and ethical standards. Accordingly, enlisting the assistance of knowledgeable healthcare attorneys to ensure compliance protocols and written standard operating procedures are in place is crucial to manage risk.
How Frier Levitt Can Help
Frier Levitt can assist providers in navigating the complexities of compliance in relation to using residents during surgery and investigations which stem from allegations related to the use of residents. If you want to proactively build a more robust compliance protocol or if you are in the midst of an investigation, contact Frier Levitt to discuss how we can assist.
[1] https://www.justice.gov/usao-sdtx/pr/texas-medical-center-institutions-agree-pay-15m-record-settlement-involving-concurrent
[2] https://www.cms.gov/files/document/guidelines-teaching-physicians-interns-and-residents.pdf
