Q As a physician, may I invest in more than one ASC at the same time? And if yes, how many?
A The ASC Investments Safe Harbor from the Federal Anti-Kickback Statute is not really intended to limit the number of ASCs in which physicians can own interests. Rather, the safe harbor focuses on preventing physicians from owning surgical centers that they refer to but don't actually use as an extension of their office space and practices. The Office of Inspector General believes that in such cases the distributions received by such "passive investors" may be nothing more than "disguised kickbacks." As a result, under the safe harbor, a non-referring physician can own interests in any number of ASCs, as long as he or she does not refer to them.
In the more common situation where a physician owns an interest in a center that he uses, if the ASC is a multi-specialty center, the safe harbor will require a physician-owner to perform at least one-third of his yearly ASC-eligible cases in the center in which he or she owns an interest. Consequently, physicians who seek to strictly comply with the safe harbor will only be able to own interests in three multi-specialty centers.
There is no corresponding one-third utilization test for single-specialty ASCs, however. As a result, a physician who satisfies all of the other requirements of the safe harbor could own interests in a large number of single-specialty ASCs, even if he refers to the centers and uses them. The assumption behind this portion of the safe harbor is that physician owners of single-specialty centers will not constitute indirect referral services.
Keep in mind that compliance with the safe harbor is optional and that those transactions that don't satisfy it are not necessarily illegal. In addition, the operating agreements for most ASC projects contain contractual restrictions on physicians' owning interests in competing projects within a given distance from the center. This may restrict the number of centers that a physician can own as well.
Lorin Patterson, Esq.
Shook, Hardy and Bacon, LLP
Do We Need a MH Crash Cart?
Q Do you know if there are any legal requirements to have a malignant hyperthermia cart on hand? We are updating our policy, and our facility is legally classified as a freestanding center but it is attached to a hospital. The anesthesiologist thinks it would be okay to have the dantrolene (Dantrium) kept in the hospital pharmacy. I've checked with www.mhaus.org and they know of no legal requirements, although their recommendation is to have the dantrolene and supplies on hand.
A The Malignant Hyperthermia Association of the United States (MHAUS), as the recognized authority in the management of malignant hyperthermia (MH), recommends dantrolene be immediately available in adequate amounts to manage a crisis. Both the American Society of Anesthesiologists and the American Association of Nurse Anesthetists have taken the position that surgery centers must have "immediately available and in an organized cart" all items required for the treatment of MH. The Accredit-ation Association for Ambulatory Health Care (AAAHC) requires that facilities that administer volatile inhalational agents known to trigger MH have "written protocols and emergency equipment for the treatment of MH immediately available." One of the four emergency resuscitation drills AAAHC requires be conducted annually must simulate a MH crisis. Perhaps performing an unannounced drill would help you in determining if the pharmacy can meet these requirements.
Caryl A. Serbin, RN, BSN, LHRM
Surgery Consultants of America, Inc.
Surgery Center Billing, LLC
Q We've just completed our first financial benchmarking project. How do we interpret the results?
A When benchmarking with other centers, look for material differences between your results and the sample results. For example, if accounts receivable days are higher than the median number reported, you can attribute to a set number of factors, including denials from payers, timeliness of dictated operative reports, timeliness of coding and billing, accuracy of coding, and the collections and accounts receivable process (including follow-up calls with insurers. If you use the recommended 12- to 18-month rolling sample of critical management data to benchmark against your own performance over time, it is important to look for trends. For example, if net revenue per case is decreasing, you should initially look to see if payer mix has changed or the type of cases performed have changed. If there have been no changes, an analysis of trends with the accounts receivable functions, including the timeliness of billing and coding and collections, could reveal operational issues that are the culprit.
Woodrum/Ambulatory Systems Development
Q Do we need to document pre-op calls in the patient's chart?
A Whether the purpose of the pre-op calls is to verifying arrival time day of surgery or is the first exchange of information between the patient and the caregivers, you should document all patient contacts in the chart. A record of the conversation communicates to other caregivers what has transpired. With this information, they can enter the continuum of care with ease, avoid duplication of efforts and decrease the risk of error.
Caryl A. Serbin, RN, BSN, LHRM