Photo: Platinus/iStockphoto.com.

Reports that government investigators are looking into the billing practices of a prominent surgeon and allegations that he may have double-booked procedures at a Manhattan teaching hospital in violation of Medicare rules highlight the scrutiny that institutions are facing over their surgery scheduling and billing practices.

The Boston Globe's investigative Spotlight Team reported that it learned of an open federal investigation into whether Medicare rules were violated when, in a highly unusual move, a federal prosecutor in New York e-mailed reporters late last month informing them of an investigation into David Samadi, chief of the urology department at New York's Lenox Hill Hospital and asking for more information. The Globe ran a story about Samadi's concurrent surgical practices in March as a follow-up to its in-depth Fall 2015 piece that sparked a national debate about the issue. The news organization said New York state also is  investigating the matter.

The U.S. Department of Justice declined to confirm the existence of a probe to Corporate Counsel. A spokesman for Lenox Hill Hospital said the hospital was unaware of a federal investigation but acknowledged it had been contacted by state regulators.

“Until getting the inquiry from the Boston Globe, neither Lenox Hill Hospital nor its parent, Northwell Health, were aware of any federal investigation into Dr. Samadi's billing practices. The US Attorney's Office has had no communications with us.  We were aware of the investigation by the New York Office of Professional Medical Conduct, but have heard nothing from the agency since early this year.  Needless to say, we always cooperate fully with any government investigative body,” the spokesman said.

The New York State Department of Health issued a statement saying the “DOH cannot confirm or deny the existence of an OPMC [Office of Professional Medical Conduct] investigation of a physician, unless charges are served upon the physician, or a public final action is taken, which is consistent with public health law.”

The fact that a prosecutor may have disclosed the existence of an investigation into Samadi likely signals that it would be exclusively civil and not criminal—at least for now, the health care fraud legal experts said Megan Cunniff Church, a former federal prosecutor and partner in the Chicago office of MoloLamken.

The experts said it's hard to predict whether the issue of concurrent surgeries is going to become a new focus of the DOJ, either civilly or criminally but, either way, it should be on the radar of all teaching hospitals.

Given the heightened interest in this arguably controversial practice, teaching hospitals are advised to develop protocols that ensure compliance with Medicare's prohibition on surgeons at those facilities conducting two operations at the same time, unless the physician is present for all “critical parts” of the procedure, experts said.

Aside from Justice Department investigations, hospitals also have to worry about patient and employee lawsuits, said Randy Luskey, a former federal prosecutor and partner specializing in health care fraud matters in the San Francisco office of Orrick, Herrington & Sutcliffe: Patients may bring medical malpractice claims against surgeons and their employers, and whistleblowers may allege Medicare billing fraud under the False Claims Act, he said.

Indeed, a former anesthesiologist at Massachusetts General Hospital filed such a lawsuit in 2015, claiming that at least five orthopedic surgeons' regular practice of billing Medicare for surgeries in which they were not in the operating room for critical parts of the procedures violated the federal and Massachusetts false claims laws. That suit, in which the DOJ declined to intervene, is pending in federal court in Boston.

The issue also has attracted the attention of lawmakers. The U.S. Senate Finance Committee issued a report in December urging hospitals to prohibit concurrent surgeries. And the American College of Surgeons issued guidance last year making clear that surgeons should not conduct two procedures simultaneously, with exceptions that should require informing the patient.

“The fact that the Senate Finance Committee is looking into it and raising concerns, a prosecutor in New York is disclosing an ongoing investigation, and various organizations representing surgeons are coming out with guidelines means that this is something [the hospitals] have to be aware of,” Church said.

Since the American College of Surgeons issued its revised guidance in April 2016, 17 of the 20 hospitals that the Senate Finance Committee contacted as part of its investigation had modified existing or created new hospital-wide policies specific to concurrent surgeries, according to the committee's report.

“It's a growing area of concern, especially if patients become more aware of who is performing their surgery. The more news articles out there will, hopefully, lead them to ask more questions,” Church said.

Given the concern, many teaching hospitals have already begun to address their concurrent-surgery policies, Luskey said. Some have adopted an extreme approach and prohibited  simultaneous procedures altogether, while others are taking  a middle ground, requiring informed consent from the patients, he added.The most important compliance tool, however, Luskey said, is forethought.

“To the extent you can, document that particular procedure and map out the key parts where a surgeon must be present or immediately available,” he said. “The more you're thinking through those things at the outset, the better equipped you are to deal with regulatory issues on the back end.”

Luskey agreed with Church that if federal investigators do initiate probes, they will  look for “that thoughtfulness at the outset.”

“Local AUSAs will have an interest in this area beyond the whistleblowers and Medicare fraud because this issue touches on specific safety concerns, which is always a driving force behind DOJ health care fraud investigations and prosecutions,” he said. Cases “become much more significant when patient safety is attached to a billing issue.”

Contact reporter Kristen Rasmussen at [email protected].

Photo: Platinus/iStockphoto.com.

Reports that government investigators are looking into the billing practices of a prominent surgeon and allegations that he may have double-booked procedures at a Manhattan teaching hospital in violation of Medicare rules highlight the scrutiny that institutions are facing over their surgery scheduling and billing practices.

The Boston Globe's investigative Spotlight Team reported that it learned of an open federal investigation into whether Medicare rules were violated when, in a highly unusual move, a federal prosecutor in New York e-mailed reporters late last month informing them of an investigation into David Samadi, chief of the urology department at New York's Lenox Hill Hospital and asking for more information. The Globe ran a story about Samadi's concurrent surgical practices in March as a follow-up to its in-depth Fall 2015 piece that sparked a national debate about the issue. The news organization said New York state also is  investigating the matter.

The U.S. Department of Justice declined to confirm the existence of a probe to Corporate Counsel. A spokesman for Lenox Hill Hospital said the hospital was unaware of a federal investigation but acknowledged it had been contacted by state regulators.

“Until getting the inquiry from the Boston Globe, neither Lenox Hill Hospital nor its parent, Northwell Health, were aware of any federal investigation into Dr. Samadi's billing practices. The US Attorney's Office has had no communications with us.  We were aware of the investigation by the New York Office of Professional Medical Conduct, but have heard nothing from the agency since early this year.  Needless to say, we always cooperate fully with any government investigative body,” the spokesman said.

The New York State Department of Health issued a statement saying the “DOH cannot confirm or deny the existence of an OPMC [Office of Professional Medical Conduct] investigation of a physician, unless charges are served upon the physician, or a public final action is taken, which is consistent with public health law.”

The fact that a prosecutor may have disclosed the existence of an investigation into Samadi likely signals that it would be exclusively civil and not criminal—at least for now, the health care fraud legal experts said Megan Cunniff Church, a former federal prosecutor and partner in the Chicago office of MoloLamken.

The experts said it's hard to predict whether the issue of concurrent surgeries is going to become a new focus of the DOJ, either civilly or criminally but, either way, it should be on the radar of all teaching hospitals.

Given the heightened interest in this arguably controversial practice, teaching hospitals are advised to develop protocols that ensure compliance with Medicare's prohibition on surgeons at those facilities conducting two operations at the same time, unless the physician is present for all “critical parts” of the procedure, experts said.

Aside from Justice Department investigations, hospitals also have to worry about patient and employee lawsuits, said Randy Luskey, a former federal prosecutor and partner specializing in health care fraud matters in the San Francisco office of Orrick, Herrington & Sutcliffe: Patients may bring medical malpractice claims against surgeons and their employers, and whistleblowers may allege Medicare billing fraud under the False Claims Act, he said.

Indeed, a former anesthesiologist at Massachusetts General Hospital filed such a lawsuit in 2015, claiming that at least five orthopedic surgeons' regular practice of billing Medicare for surgeries in which they were not in the operating room for critical parts of the procedures violated the federal and Massachusetts false claims laws. That suit, in which the DOJ declined to intervene, is pending in federal court in Boston.

The issue also has attracted the attention of lawmakers. The U.S. Senate Finance Committee issued a report in December urging hospitals to prohibit concurrent surgeries. And the American College of Surgeons issued guidance last year making clear that surgeons should not conduct two procedures simultaneously, with exceptions that should require informing the patient.

“The fact that the Senate Finance Committee is looking into it and raising concerns, a prosecutor in New York is disclosing an ongoing investigation, and various organizations representing surgeons are coming out with guidelines means that this is something [the hospitals] have to be aware of,” Church said.

Since the American College of Surgeons issued its revised guidance in April 2016, 17 of the 20 hospitals that the Senate Finance Committee contacted as part of its investigation had modified existing or created new hospital-wide policies specific to concurrent surgeries, according to the committee's report.

“It's a growing area of concern, especially if patients become more aware of who is performing their surgery. The more news articles out there will, hopefully, lead them to ask more questions,” Church said.

Given the concern, many teaching hospitals have already begun to address their concurrent-surgery policies, Luskey said. Some have adopted an extreme approach and prohibited  simultaneous procedures altogether, while others are taking  a middle ground, requiring informed consent from the patients, he added.The most important compliance tool, however, Luskey said, is forethought.

“To the extent you can, document that particular procedure and map out the key parts where a surgeon must be present or immediately available,” he said. “The more you're thinking through those things at the outset, the better equipped you are to deal with regulatory issues on the back end.”

Luskey agreed with Church that if federal investigators do initiate probes, they will  look for “that thoughtfulness at the outset.”

“Local AUSAs will have an interest in this area beyond the whistleblowers and Medicare fraud because this issue touches on specific safety concerns, which is always a driving force behind DOJ health care fraud investigations and prosecutions,” he said. Cases “become much more significant when patient safety is attached to a billing issue.”

Contact reporter Kristen Rasmussen at [email protected].