Beware When Anesthesia in the ICU Runs Afoul of the Law

NEW ORLEANS — Clinicians may be surprised that rules governing deep procedural sedation in intensive care settings forbid certain practices that seem like standard care, according to a discussion at this year’s American Society of Anesthesiologists (ASA) annual meeting.

“The way you think is okay, it’s how things should work, [is] running afoul of federal regulation and the law. Some things are common sense and might [seem] fine, but the reality is they’re running askew of what the federal government wants us to do,” warned Grant Lynde, MD, MBA, an operating room anesthesiologist at Emory University School of Medicine in Atlanta.

The problem is that deep procedural sedation in intensive care often amounts to general anesthesia and is potentially unsafe when administered by the wrong person.

Lynde explained that most critical care proceduralists do not want the patient responsive to painful stimulation during procedures. The anesthesia that the proceduralists really want may be deeper than what they’re asking for, and then the issue turns into who can administer that deeper sedation or general anesthesia.

In practice, depending on the state, only an anesthesiologist or another physician — not a trained RN — can give deep sedation in the ICU. On occasion, it’s “less than desirable” but perhaps okay if a patient getting moderate sedation from a nurse gets a little extra and ends up in deep sedation; if this is routinely done for everyone, however, “you’re committing Medicare fraud,” Lynde said.

He added that it’s also not acceptable for anesthesiologists to intubate patients and walk away just before a procedure is performed by someone else.

ASA and federal guidelines say that anyone administering and monitoring deep sedation must be dedicated to that task, meaning that they cannot be the same person performing the diagnostic or therapeutic procedure. Non-anesthesiologists must be qualified and trained to recognize and rescue from general anesthesia.

The regulations may be “difficult to reconcile with contemporary practice in anesthesiology care in the ICU,” said session moderator and critical care anesthesiologist Craig Jabaley, MD, also of Emory.

“Deep procedural sedation occurs in a variety of settings whether that’s okay or not,” said Zackary Chancer, MD, MS, a critical care anesthesiologist at the University of Southern California in Los Angeles, to nervous chuckling from the audience.

He cited intubation, tracheostomy, intracranial monitor placement, and fracture reduction as ICU procedures requiring deep sedation. Other procedures for which deep sedation can also be administered include endoscopy, percutaneous endoscopy gastrostomy, bronchoscopy, cardioversion, wound debridement, and extracorporeal membrane oxygenation cannulation.

To “stay on the side of righteousness,” Lynde advised his audience to double-check these rules with local compliance officers, their billing company, and state regulation.

Jabaley noted that there is some institutional variability in how professional guidance is interpreted, and he commiserated with an audience member’s complaint that the hospital billers are unhelpful when she has these questions.

Jabaley stressed the importance of a training pathway and robust quality assurance and improvement program that covers both regulatory and clinical aspects of anesthesia in critical care settings.

The important thing is ICU leadership, said Chancer: without the leaders on board, the illegal practices are unlikely to stop.