Select Page

As a
lawyer for whistleblowers and a taxpayer, I was pleased to see that the
Government took affirmative action to stop anesthesia fraud. This time,
according to an article in the Newport Beach Coronado del Mar Patch, the University of California-Irvine paid $1.2 million to resolve allegations
that it had been allowing Certified Registered Nurse Anesthetists or residents
to administer anesthesia without a supervisory anesthesiologist being
either present or available. Lawyers for the whistleblower filed a suit
stating that even when the supervisor was not present, the hospital filled
out records – in advance of the surgery, even – to make it
look like the surgeon was there. The hospital then billed for the higher
rate it was entitled to charge if the anesthesiologists directly supervised
the medical procedures. The California Board of Regents paid the United
States government in order to resolve the allegations that the University
of California-Irvine (UCI) had overcharged Medicare by this practice.

I have received a shocking number of calls about fraud by anesthesiologists
and anesthesia groups – far and away more than for any other type
of Medicare fraud, Medicaid fraud or Government contract procurement fraud.
Apparently I am not alone. Several cases reported in the legal case journals
relate to anesthesiologists accused of defrauding the Government. Because
of the way the anesthesia field is set up, almost all of these cases all
revolve around the question of supervision.

Certainly most people who go into the hospital are under the impression
that a doctor is administering their anesthesia. In fact, frequently a
nurse anesthetist is administering the anesthesia. A nurse anesthetist
does have some specialized training in anesthesia, but is not an M.D.

Under Medicare’s rules, an anesthesiologist can bill Medicare the
most if he or she personally performs the anesthesia. However, the anesthesiologist
also can bill for “medically directing” anesthetists who actually
perform the procedures. The Medicare rules require several “touchstones”
to prove that the anesthesiologist actually is doing the supervising.
For example, the anesthesiologist has to be present at certain, key points
in the procedure, and has to be on call to help. The anesthesiologists
only can request reimbursement for four or fewer anesthesiology procedures
at the same time. The point of all of these rules, of course, is to make
sure that the doctor is really involved in and supervising the work being
done on patients. If the anesthesiologist is not as involved in the supervision,
he still can bill Medicare if he supervises the anesthetists less closely,
but in that case he must expect a lower rate for his work in “medically
supervising” the process.

The University of California-Irvine suit was filed by an anesthesiologist,
Dr. Dennis O’Connor. Hats off to Dr. O’Connor, who stood up
for the right thing.

I have heard about a number of cases in which anesthesiologists went to
great lengths to conceal the fact that they were not supervising the anesthetists,
yet were billing as if they were closely supervising, or even personally
performing, the procedure.

I cannot imagine why the anesthesia field in particular would have a disproportionate
number of doctors bent on Medicare fraud and Medicaid fraud. Certainly
anesthesia billing fraud needs to be brought to a screeching halt, and
we owe a debt of gratitude to the courageous doctors, anesthetists, billers
and coders who are willing to step forward in order to stop fraudulent
billing in this area. I hope more anesthesia whistleblowers like Dr. O’Connor
will come forward, before the reputation of the entire industry takes
a serious battering.


Lee’s peers have named her a Georgia SuperLawyer every year for two decades.