Q When we finished our JCAHO reaccreditation review, we were told that we had to purchase a ventilator - even though we don't do general anesthesia at our podiatry center. We don't have the resources to spend on an expensive machine that will gather dust in our OR and I don't understand the reasoning behind it.

A Mechanical ventilators are not a requirement of JCAHO standards unless the ASC has intentionally elected to use JCAHO for Medicare deemed status. In that instance, standard PC.13.20, Element of Performance #17, requires that organizations maintain "mechanical ventilatory assistance equipment, including airways, manual breathing bags, and ventilators." This requirement is dictated by CMS (CFC #416.44(c)3 for ambulatory surgery centers) and is not under the control of JCAHO. However, due to our deemed status agreement with CMS for ASCs, JCAHO is required to assess for compliance during an ASC Deemed Status survey.

Can techs push the endoscope?
Q We have a physician who wants the tech to advance the scope throughout the procedure so that he can have both hands free to adjust the dials and take pictures. We have some reservations regarding the liability of our center and the tech if something goes wrong.

A The accepted standard is for the physician to do the scope maneuvering and insertion as he advances the scope, but whatever lets the doctor do the most thorough exam without compromise to the patient is what he should be doing. If techs are trained adequately (probably in their center by their MDs), it is plausible for them to advance the scope as the physician directs. About 25 percent of the time, I let the nurse or a medical assistant pass the scope, usually through a limited portion. This frees up my hands to do other things and sometimes makes the procedure go faster. But there have to be set-in-stone safety guidelines. If there's any resistance, give the scope back to the doctor or ask him to check. No matter who is advancing the scope, the doctor is ultimately responsible.

Intubating fiberoptic scopes
Q Is it a good idea to buy intubating fiberoptic scopes for difficult airway cases?

A Yes. Every center I've been involved with or visited as an AAAHC surveyor had an intubating fiberoptic scope as part of its difficult airway cart. From a safety and accreditation standpoint, and as a necessary component of the difficult airway algorithm, this type of scope is essential to any freestanding surgical facility. Plus, tools to safely negotiate a difficult airway will decrease your legal exposure. Many freestanding surgery centers with properly trained anesthesiologists and adequate equipment are comfortable treating patients with known difficult airways.

Leasing that spare OR
Q Can a surgery center lease an OR to a surgeon who would then bill third-party payors directly for cases performed in that OR during the time the room is leased by the surgeon?

A The answer is, of course, maybe. For the lease to comply with the anti-kickback safe harbor, it should have a term of at least one year, provide for fair market value rent in a fixed amount and provide specific times during which the surgeon would take possession of the premises. The rent must take into account all the value of the services provided to the lessee, including patient registration, waiting room, surgical staff, surgical instruments, equipment and supplies in addition to the value of the OR itself.

The lessee will only be able to bill Medicare or third-party payors an ASC facility fee if he holds an ASC license in his name for the leased space during the times he's performing procedures. In many states, a separate license isn't necessary. In others, it will be impossible for the lessee to obtain an ASC license for the leased space. If the lessee can't obtain an ASC license, the arrangement won't be economically viable for him if he intends to look to third-party payors for reimbursement. The arrangement may work for a plastic surgeon who looks to patients, rather than third-party payors, for reimbursement.

We've seen arrangements structured so that the licensed ASC leases not only the OR, personnel, equipment and supplies to the individual surgeon, but also leases the surgery center license to the lessee surgeon. Legal counsel should analyze such arrangements that involve billing a government program for potential fraud and abuse issues. You shouldn't pursue them without an OIG advisory opinion.