MEDAC BILLING & COMPLIANCE ALERT
February 2, 2010

By: Bellinger P. Moody RHIA,CPC, CCP
Executive Vice President of Compliance

ASA Confers with CMS on New Interpretive Guidelines

In a recent letter to CMS dated January 18, 2010, Dr. Alexander Hannenberg, President of the ASA, stated the ASA’s concerns and perspective in reference to the new revisions to the hospital interpretive guidelines that will affect anesthesia service provision.
Specifically, the letter stated the ASA’s concern that CMS issued the revisions “to the hospital Conditions of Participation without proceeding through the formal rulemaking process” and goes on to state that “CMS should have afforded the public the meaningful and adequate opportunity to supply comments on these changes before proceeding.”  The primary concern with this being that “this sort of action could establish a precedent whereby CMS continues to take future new and substantive regulatory actions without offering transparency on intentions, rationale, evidence and policy.”

The letter lauds CMS for its provision on “One Anesthesia service” which according to Dr. Hannenberg basically says that “hospitals will need to organize all anesthesia services, including the CMS newly defined anesthesia and analgesia services provided at all locations by all providers under one anesthesia service”.  Dr. Hannenberg and the ASA “believes these provisions will help ensure consistency in terms of provider qualifications and anesthesia administration across all areas of a particular hospital, as well as safety and high quality of care for respective patients.”

On the issue of labor epidurals, although the ASA acknowledges the current shortage of anesthesiologists in the U.S., it did question CMS’ change in policy which permits CRNAs to administer labor epidurals/spinal medications for labor and delivery without the supervision of a physician. ASA specifically asked CMS to reconsider its guidance in this area and require supervision of this service by physician.  The letter gave specific justifications for the request – ranging from “compromise of safety net for mother and baby” to “non-reliable distinction between the effect of analgesic doses of epidural drugs and anesthetic doses on the sympathetic nervous system and its cardiovascular effects.”

With respect to pre and post anesthesia evaluations, ASA also stated its concerns.  Its primary concerns with the new pre-anesthesia evaluation guidelines were that:  (1) the 48 hour (pre-anesthesia evaluation requirement) is to rigid and compromises the anesthesiologist’s and hospital’s ability to properly assess and prepare complex, sick patients for their surgeries; and (2) the 48 hour requirement does not recognize certain logistical restraints, e.g. most patients are not admitted to the hospital the day before a surgery.  The overwhelming majority are admitted on the day of their surgery, or the surgery is provided in the outpatient hospital setting. As a result, ASA urged CMS to “retract this new 48 hour requirement and stick with the existing standard of immediate pre-operative assessment to insure that the current condition of the patient is fully appreciated at the time of the anesthesia.”

In reference to the new post-anesthesia evaluation requirements, ASA agreed that the evaluation should be done and documented by a qualified anesthesia practitioner and that the 48 hour requirement is reasonable for both inpatients and outpatients.  However, it did not agree with the requirement to have the post anesthesia evaluation completed and fully documented for all outpatients, prior to discharge.  The ASA also disagreed with the provision stating that “the evaluation generally would not be performed immediately at the point of movement from the operating suite to the designated recovery area.”  ASA went on to say:  “we agree that the post-anesthesia evaluation should not be completed and documented until the patient has sufficiently recovered from the effects of anesthesia.  Certain anesthetics, including modern general anesthetics, allow for fast tracking and prompt recovery after the procedure.  Further, monitored anesthesia care often results in patients sufficiently awake and aware to perform an assessment immediately.  Regional anesthetic nerve blocks are typically performed with long-acting agents to provide for extended postoperative pain control.  Does the CMS guidelines require that the patient be recovered from the effects of this anesthetic to be assessed?  If so a major goal of outpatient pain control is compromised.”  Dr. Hannenberg went on to say that “in the absence of any compelling evidence that existing standards for patient discharge and assessment are inadequate, we believe that the new guidelines are unnecessary, counterproductive and should be withdrawn.”

Additionally, in a recent e-mail from Mr. Jason Byrd, J.D. (Directory of Practice Management, Quality and Regulatory Affairs, ASA) to a current Medac client, Mr. Byrd states that “ASA is concerned about the definition of immediately available with respect to its potential impact on medical direction rules.  It’s important to recognize that the “immediate availability” provisions in these guidelines apply to the HOSPITAL conditions of participation and are not to be confused with the Part B medical direction payment rules.  Those rules include flexibility for certain situations (the “six allowable sins”) and should not imply any universal requirement for 1:1 medical direction.  Additionally, the language that CMS released in December on immediate availability does not differ materially from the language that has been in the COP for quite some time.  If anything, one could read the new language as less prescriptive than the predecessor language.  That being said, we recognize there is a great deal of confusion amongst the membership, which means there will be greater confusion amongst surveyors, and we are planning to begin discussions with some CMS officials as early as next week.  In the meantime, we have posted a letter ASA submitted to CMS on issues with the interpretive guidelines on the ASA website on January 18, 2010.”

Therefore, in reference to this definition of immediately available as defined in the HOSPITAL conditions of participation my guidance based on this communication is that currently this definition does not affect the medical direction rules and  you should continue to comply with the current medical direction rules the way you always have until and if we hear anything different.

You may view the new interpretive guidelines as well as Dr. Hannenberg’s letter in their entirety at www.asahq.org/news/asanews011810.htm.  As of the writing of this alert, there has been no CMS response posted on the ASA website.


The information presented herein reflects general information that is current as of the date it is first published.  In light of changes that may occur in the health care regulatory and compliance environments, the author's presentation of this information and any general advice previously published might become outdated.  Please check with your individual legal and/or compliance advisor(s) prior to taking any significant actions based upon the information and advice presented.