Concurrent and Overlapping Surgery Disclosure: CMS Compliance and Documentation Requirements
Concurrent surgery (also called overlapping surgery) occurs when a surgeon begins a second operation before completing the first. The practice became the subject of federal regulatory action following a 2015 Boston Globe investigation of concurrent cardiac surgeries at Massachusetts General Hospital. CMS responded by issuing Transmittal 3573 in January 2016, which clarified consent and supervision requirements for concurrent procedures and required hospitals to disclose the concurrent surgery practice to patients before obtaining consent. The Joint Commission and the American College of Surgeons subsequently issued guidance on informed consent and supervision standards for overlapping surgery. This guide covers the CMS disclosure requirement, what must appear in consent documentation, supervision requirements for the portions of a case conducted without the attending surgeon, and the documentation practices that reduce institutional and individual liability exposure.
CMS Concurrent Surgery Requirements and the Consent Disclosure Standard
CMS Transmittal 3573 (January 2016) amended the CMS Conditions of Participation to require that hospitals with concurrent surgery programs disclose the practice to patients as part of the informed consent process. The disclosure must inform the patient that their surgeon may be operating on another patient during portions of the procedure, identify the supervising practitioner who will be present during the portions the attending surgeon is not present, and confirm that the attending surgeon will be present for all critical portions of the operation. These three elements must be reflected in the written consent record, not only in the verbal pre-operative conversation.
CMS defines critical portions of a surgical procedure as those steps that require the primary surgeon's judgment and skill and that cannot be delegated to a resident or another practitioner without compromising the safety or outcome of the procedure. The definition of critical portions is procedure-specific and is the responsibility of the attending surgeon to determine and document before the case. A general statement in the consent record that the surgeon will be present for critical portions without specifying what those portions are does not satisfy the CMS documentation requirement.
The CMS requirement applies to hospital-based surgical programs. Ambulatory surgery centers certified by CMS as ASCs are governed by ASC Conditions for Coverage, which do not contain an identical concurrent surgery disclosure requirement as of the current CMS guidance. However, the American College of Surgeons' Statement on Concurrent and Overlapping Surgery (2016) recommends that all surgical settings, including ASCs and office-based suites, adopt the concurrent surgery disclosure and documentation practices developed for hospitals. State licensing agencies and accrediting bodies may impose concurrent surgery disclosure requirements on ASCs independent of the CMS ASC Conditions for Coverage.
Consent documentation for a concurrent surgery case must capture the patient's acknowledgment that they received and understood the disclosure, not merely that the disclosure form was signed. A best practice is to include the concurrent surgery disclosure as a separately initialed section of the consent form, with a line for the patient to write in (or confirm) the name of the supervising practitioner who will be present during the non-critical portions. A consent record with a single signature at the end of a multi-paragraph form does not demonstrate that the patient reviewed the concurrent surgery disclosure specifically.
Supervision Documentation During Non-Attending Portions of Overlapping Cases
The supervising practitioner present during the portions of a concurrent case when the attending surgeon is in another operating room must be identified by name in the operative record. The operative record should capture the time the attending surgeon left the room, the time the attending returned, and the name of the practitioner present during the interval. Operative records that capture only the attending surgeon's presence during the full case without noting the interval and the supervising practitioner do not reflect the actual course of the operation in a concurrent scheduling model and create a documentation discrepancy that may surface during payer audits or malpractice review.
Teaching physician billing requirements under Medicare add a layer of documentation obligation when a resident is the supervising practitioner during concurrent case intervals. CMS teaching physician guidelines require that the teaching physician be present for the key portion of a procedure to bill under their provider number. For concurrent cases, the teaching physician must document in the operative note the key portions of the procedure they personally performed and must confirm that they were present for those portions. A teaching physician operative note that does not distinguish their personal participation from resident participation during a concurrent case creates both billing compliance and supervision documentation gaps.
Hospital operative scheduling records are a secondary documentation source that creates a contemporaneous record of concurrent case timing. Operating room scheduling logs that capture the time each patient entered and left the OR, the time of anesthesia induction and emergence, and the time of incision and closure for each case provide an objective timeline against which the attending surgeon's documented presence can be compared. When the scheduling log shows overlap between two cases and the operative note does not reflect any interval of non-attending supervision, the documentation inconsistency indicates either that the concurrent nature of the cases was not documented or that the operative note does not accurately reflect the course of the procedure.
Credentialing and privileging documentation should reflect whether a surgeon is approved to perform concurrent cases and should specify any procedure-specific limitations on concurrent scheduling. Surgical departments that permit concurrent surgery should have a written policy specifying which procedures may be scheduled concurrently, the minimum qualifications of the supervising practitioner, the notification and approval process when concurrent scheduling is planned, and the documentation requirements for each concurrent case. A practitioner who conducts concurrent cases outside the scope of the department's concurrent surgery policy creates individual liability exposure beyond the institutional liability associated with the concurrent surgery program.
Risk Management Documentation and Audit Considerations
The most significant liability exposure from concurrent surgery arises when a complication occurs during the interval when the attending surgeon was absent from the operating room. In this scenario, the central questions are: was the patient informed that the surgeon might be absent for a portion of the procedure, was a qualified practitioner supervising during the interval, and was the critical portion of the procedure completed before the surgeon left the room. Each of these questions is answered by documentation: the consent record, the operative record, and the credentialing record for the supervising practitioner. Practices that can produce complete, consistent documentation on all three points are significantly better positioned in concurrent surgery complication cases than those with gaps in any area.
Post-complication chart review in concurrent surgery cases routinely examines whether the complication occurred during a critical or non-critical portion of the procedure and whether that classification was documented before the case. Surgeons who document critical portions prospectively, as a component of the pre-operative consent process, are protected from the argument that the critical portion classification was created retrospectively to minimize liability. Pre-operative documentation of critical portion identification is a specific practice the American College of Surgeons recommends in its concurrent surgery guidance.
State medical board regulations vary on concurrent surgery. Some states have enacted specific concurrent surgery rules in response to the 2015 federal attention to the practice. California, for example, requires written patient consent for concurrent surgeries and prohibits certain procedures from being performed concurrently. Surgical practices should confirm whether their state medical board, state hospital licensing agency, or state accrediting requirements impose concurrent surgery restrictions that are more stringent than the CMS Transmittal 3573 requirements.
Quality improvement monitoring for concurrent surgery programs should track adverse events, complications, and patient complaints specifically associated with concurrent cases and compare rates to non-concurrent cases. QAPI documentation that includes a concurrent surgery-specific adverse event review demonstrates institutional awareness of the practice's risk profile and supports the argument that the concurrent surgery program operates with appropriate oversight. Institutions that have no concurrent surgery-specific quality monitoring cannot demonstrate that the institutional oversight required by the CMS Conditions of Participation is being applied to this practice.
What exactly must be disclosed to a patient whose surgery will be scheduled concurrently with another case?
Per CMS Transmittal 3573 and the American College of Surgeons' concurrent surgery guidance, the disclosure must inform the patient that their surgeon may be operating on another patient at the same time, identify the qualified practitioner who will be present in the operating room during intervals when the attending surgeon is attending to the other case, and confirm that the primary surgeon will be present for all critical portions of the procedure. The disclosure should be delivered before the patient signs the informed consent form and should be documented in the consent record, ideally as a separately initialed section. The disclosure should name the supervising practitioner rather than describe their role generically, because the patient's consent is to a specific supervision arrangement, not to an unspecified substitute.
Are ambulatory surgery centers required to comply with the CMS concurrent surgery disclosure rule?
CMS Transmittal 3573 addressed hospital Conditions of Participation and did not amend the ASC Conditions for Coverage. As of the current CMS guidance, ASCs are not subject to the identical disclosure requirement. However, the American College of Surgeons recommends that all surgical settings adopt equivalent concurrent surgery disclosure practices. Some state licensing agencies have extended concurrent surgery disclosure requirements to ASCs through state-level regulation. ASCs that permit overlapping surgery scheduling should review their state's ASC licensing regulations and their accrediting body's standards and should implement a concurrent surgery disclosure and documentation policy that reflects any applicable state or accreditation requirements.
How should a surgeon document which portions of a procedure are critical?
The American College of Surgeons recommends that the surgeon document critical portions before the procedure, as part of the pre-operative planning or consent process, rather than after a complication has occurred. The documentation should identify the specific steps of the procedure that require the attending surgeon's presence, using procedure-specific terminology that corresponds to the surgical technique. For a laparoscopic cholecystectomy, for example, critical portions typically include the dissection of the hepatocystic triangle, division of the cystic artery and cystic duct, and the extraction of the gallbladder. The pre-operative documentation of critical portions should be retained in the patient's chart alongside the consent form so that the classification can be established as prospective rather than retrospective.
What documentation is required when a complication occurs during the interval a surgeon is absent from the operating room?
When a complication occurs during the interval when the attending surgeon is not in the operating room, the operative record should document the time the complication was identified, the actions taken by the supervising practitioner, the time at which the attending surgeon was notified, the time at which the attending surgeon returned to the room, and the steps taken by the attending surgeon following their return. The supervising practitioner's credentials and scope of practice should be retrievable from the credentialing file to confirm that they were authorized to manage the type of complication that occurred. An event report or adverse event record should be initiated according to the facility's patient safety event reporting policy, and the concurrent nature of the case should be documented in the event report.
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This blog provides general information about healthcare compliance and aftercare best practices. It does not constitute legal, medical, or regulatory advice. Consult qualified professionals for guidance specific to your practice.
