(Circulation. 1998;97:2191.)
© 1998 American Heart Association, Inc.
Tracking a Tangled PATH
Ruth SoRelle, Circulation Newswriter
Probably
no move by the federal government in recent years has generated more
alarm than the so-called PATH audits in teaching hospitals. Late last
year, more than 40 named teaching hospitals, institutions, and
organizations filed suit to halt the audits, calling them retroactive
enforcement and a threat to the future of medical education. On April
27, 1998, a federal judge in California dismissed the case, saying it
was not "ripe" for litigation. Now the parties have to decide
whether they will appeal that decision.
"It is simply one of the greatest threats to the medical
education system that we have," said Ted Lewers, MD,
secretary-treasurer of the American Medical Association, one of the
organizations that has filed the suit. "It is a direct attack on the
medical schools of this country."
PATH stands for Physicians At Teaching Hospitals and
represents an attempt by the Office of Inspector General (OIG)
of the US Department of Health and Human Services (HHS) to determine if
teaching hospitals and other institutions comply with federal rules
about how teaching physicians should bill for care when a resident is
involved. In a June 21, 1996, letter announcing the plan to begin the
nationwide series of audits, the OIG wrote, "This initiative grows
out of the extensive work performed by the OIG at a major East Coast
university. The focus of the review was compliance with Intermediary
Letter 372 (IL-372), the Medicare rule affecting payment for physician
services provided by residents. We found that the institution was not
complying with this rule. We also found that teaching physicians were
improperly `upcoding' the level of service provided in order to
maximize Medicare reimbursement. ... The OIG has initiated the PATH
project in order to determine whether, and to what extent, similar
problems are present at other teaching institutions throughout the
country."
The audits covered teaching physicians' services from 1990
through 1995, and between June 1996 and July 1997, the OIG initiated 49
PATH audits at different teaching institutions. The outcry was
immediate and loud.
Perhaps the results of the first PATH audit prompted that
concern. The University of Pennsylvania paid $30 million: $10 million
for overpayment and $20 million in penalties because the US Department
of Justice considered the overbilling a violation of the False Claims
Act.
Yet medical schools and teaching hospitals, along with
professional associations, said the rule about how to document and bill
Medicare for the services of teaching physicians had long been
ambiguous. Not so, said the OIG. In April 1967, a letter from the HHS'
bureau of health insurance (IL-372) gave what the federal government
said were clear instructions about billing for institutions, teaching
physicians, and insurance carriers. The letter was reinforced and
updated twice: once in 1992 and again in 1996.
But according to the Association of American Medical Colleges
(AAMC), the OIG in performing the PATH audits was applying the newest
standards that went into effect July 1, 1996, rather than the older
standards that dated back to 1966. In addition, the AAMC charged that
the OIG went into the audit with the notion that any errors were, in
fact, fraud. The inspector general backed off a little in the summer of
1997, when Harriet Rabb, general counsel to HHS, said that the
standards for paying teaching physicians had not always been clearly
delineated. The intermediary who administers the Medicare program is
assigned the duty of clearing up confusion. If an insurance carrier had
informed a teaching institution that physicians must either personally
furnish a service or be present when it is furnished by an intern
or resident, then a PATH audit was appropriate. If that guidance had
not been forthcoming from the intermediary, then the institutions were
not liable. As a result, the OIG ended 16 of the 49 PATH audits then
under way because the intermediaries had not provided clear guidance
as to the rules. But for many, the audits continue and will be pursued
across the country.
Audits are a way of life from now on, said Robert Dickler, the
AAMC's senior vice president for health care affairs. "But they
should be conducted on a fair basis," he said.
"The basic issue is that the inspector general has begun
looking at medical schools and teaching programs," said Dr Lewers.
"There have been a number of guidelines for documentation," and
these have changed over the years.
What angers Dr Lewers is the manner in which the audits were
performed, as well as the fact that they happened at all. "This
isn't to say that mistakes should not be rectified," he said. "But
the manner in which this entire process has been carried out leaves a
great deal to be desired. What happened was that when the FBI went in,
they would flash their badges and say, `We want 100 charts right
now.' The charts were reviewed based on the 1996 guidelines, but the
services rendered were pre-1995."
In some cases, Dr Lewers said, the institutions had been audited
recently according to more current guidelines, and few or no problems
were found. In some instances, money was repaid; in others, it did not
need to be, he said. "Now we suddenly have the FBI coming in,
flashing badges, demanding charts and comparing them to a standard that
did not exist when the service was rendered. They come in and find some
mistakes and then extrapolate that to the number of claims filed in
that period."
In addition, he said, mistakes made in the government's favor
were not counted. "It was almost a gestapo technique." The AMA
joined the suit "to try to get some clarification and stop the
process. None of us are in favor of blatant fraud," said Dr Lewers.
But in some instances, the requirements are onerous. "If you do a
history and physical on a patient, that takes a good hour." Often the
resident, also a licensed physician, does the history and physical, and
the teaching physician comes in and reviews it. "Why should the
teaching physician spend another hour of his or her and the patient's
time doing the whole thing over again? We need to make sure we have
guidelines for the teaching process that make sense. What we are seeing
now is totally inappropriate."
