PATH guidelines change to alleviate concern

Some academic centers dropped from investigation

The U.S. Department of Health and Human Services (HHS) has issued new guidelines governing future Medicaid fraud audits at teaching hospitals in response to complaints from physicians and teaching hospitals.

Complaints alleged that prior investigations held physicians and teaching hospitals unnecessarily accountable for billing errors that resulted from conflicting directives and poor communication on the part of carriers and federal agencies.

The new guidelines, which take effect immediately, also mean that 16 of the 49 academic health centers previously reviewed for possible offenses and violations of a teaching physician "physical presence" standard for Medicare Part B reimbursement were dropped from the investigation. These institutions were dropped because they were served by carriers who had not provided adequate guidance on physicians at teaching hospitals (PATH) reimbursement rules.

The HHS’ Office of the Inspector General (OIG) plans 20 to 30 new audits to replace the ones it cancelled, say HHS sources.

Medical groups have criticized the previous PATH audits on the grounds that physicians and academic medical centers should not be held accountable for billing errors that are more likely the result of poor communication than fraud.

Officially announced in August 1996, PATH has already collected $42 million in settlements from two hospitals, at the University of Pennsylvania and at Thomas Jefferson University, both in Philadelphia. These first audits reviewed billings between 1990 and 1995 to determine if teaching physicians were physically present when they provided supervision of residents for services billed to Medicare.

Physicians complained that a final rule establishing the "physician standard" was not effective until July 1996.

In response, HHS says, future PATH audits will only involve institutions where Part B carriers "issued clear explanations of the rules regarding reimbursement for the services of teaching physicians" before Dec. 30, 1992 — the first date the relevant standards were clearly settled, according to HHS. To qualify for reimbursement after that date, "physicians must either personally furnish a service or be present when it is furnished by an intern or resident in order to be reimbursed under Part B."

What do guidelines stipulate?

According to other PATH audit guidelines established, investigators will do the following:

- Investigators will not approach a hospital to begin PATH talks until it has obtained carrier documents "showing that clear instructions on the need for teaching physicians to be physically present were given to the institutions or physicians served by that carrier."

- They must first review any carrier guidance that the hospital "views as contradictory" after approaching the hospital and before continuing its audit.

- Investigators will only audit physician evaluation and management codes prior to August 1995 if they represent "egregious cases of upcoding abuse or fraud."

- They will not undertake a PATH audit for upcoding of physician services if they do not pursue a PATH audit on the physical presence issue. However, HHS may still conduct a non-PATH audit based on other information as it sees fit.

- Investigators will continue to credit a hospital’s submitted undercoded claims against upcoded claims.

Chicago-based American Medical Association (AMA) officials say they are happy about these changes. "We won a victory, " says AMA General Counsel Kirk Johnson. But they also say they are concerned that HHS’ action could give the department too much authority to create policy. The AMA will challenge whether the related guidance from carriers was clear, prominent and totally consistent with other carrier documents.

However, Susan Waltman, general counsel for the Greater New York Hospital Association, says the new carrier-based audit guidelines "probably won’t hold up if challenged," as they may violate the Administration Procedures Act, which requires public notice and comment before new federal policies can be officially implemented.