The PATH Audit That Almost Was

There are fundamentally 3 reasons to have a progress note:

1. To communicate with other healthcare providers
2. To provide documentation for medial-legal purposes
3. To provide documentation for billing purposes

In the 1980’s, communication with other healthcare providers reigned king. We marked up medical student H&Ps with red ink if they didn’t have perfect grammar and we carefully dictated referral letters and then edited them before sending them out. Nobody cared about billing documentation back then – it just wasn’t important. All of that changed on June 21, 1996, when the Office of the Inspector General announced the PATH audits – “Physicians At Teaching Hospitals”. Although designed to be a way to protect Medicare against billing fraud, the PATH audits turned into the medical billing equivalent of the Spanish Inquisition. Federal Inspectors would do probing chart reviews of physicians at academic medical centers and if they found charts that didn’t have the right documentation elements, they would swoop in and do a massive audit of all of the physicians, often resulting in fines of 10’s of millions of dollars.

It was easy for these investigators – Medicare had established billing rules and required that the each progress note contain sufficient elements to justify different levels of billing. So, for example, a given level of billing for a new patient visit had to have at least 3 symptoms, a past medical/social/family history, 9 different systems documented in a review of systems and at least 11 different body parts examined. If the inspectors (who were not physicians) did not find all of those elements, the physician had to pay back the money from that particular bill and was also susceptible to an additional fine for each progress note that didn’t pass muster.

Although there were examples of clear fraud, for example, a surgeon who billed surgical procedures in Minnesota but had credit card receipt documentation that he was in London, England at the time, most of the cases labeled as “fraud” were really just good doctors trying to take care of patients but not documenting every part of their physical exam or forgetting to list all of the patient’s previous surgeries in their H&Ps. There was also a dark side of the PATH audits because they could also be vindictively.

You see, if a person called the Inspector General’s whistleblower hotline and it resulted in an audit of a physician (or better yet, a large academic medical center group practice), then the whistleblower got to keep up to half of all of the fines that the government collected. You could become a multimillionaire simply by calling in the dogs of the Inspector General.

In the late 1990’s, I was the subject of such a vindictive investigation. We had recently cut the salary of some of the physicians in our group because of low productivity and I was in charge of the clinical/financial management of the group. That year, 3 of our physicians left and one particular physician left the University, harboring a lot of anger and resentment, mainly directed to me since I was perceived as the one who cut his salary. So, he called the Inspector General’s whistleblower hotline alleging that I had fraudulently billed millions of dollars to Medicare. Because of the enormous dollar amount alleged, the OIG descended on our hospital’s medical records department and pulled every single progress note, procedure note, and H&P I had written or co-signed over a 3-month period.

It took them months to comb through thousands of my notes and with each note, they had a scorecard that they would check whether or not I had enough review of systems documented and enough body part examinations documented. It must have cost the OIG a small fortune to send investigators to review all of these notes. We hired an attorney to represent me through this process because of the fear that if I didn’t have the right documentation, it could open the door to a dreaded PATH audit that could essentially wipe-out the physician faculty ranks at Ohio State University. After the completion of the audit, here is what they found:

1. I had over-billed by one level about 5 times (I had to pay back the difference – total was less than $100)
2. I had under-billed by one or two levels about 25 times (total was about $2,000 but they don’t give you any money back in this situation)
3. I had a few notes that I had written when billing ventilator management charges (used by pulmonologists rather than the more documentation-intensive return visit charges). Unfortunately, in addition to my notes, my medical students also had notes in the chart that referred to the ventilator settings and ventilator weaning. Because Medicare classifies ventilator management as a procedure and because any procedure done by a medical student, even with full supervision by the attending physicians, cannot be billed to Medicare, they asked for all of the money back for these notes – total about $200. Although I had done all of the actual ventilator analysis and written all of the orders, since the students also documented the ventilator settings, they said that the “procedure” of ventilator management involved medical students so I couldn’t bill it.
4. I had come into the hospital one night to see a patient with acute respiratory failure in the ICU – I intubated her, put a central line in her, and did a bronchoscopy. In addition to the procedures, I also billed a critical care charge – for this charge, you have to document that you spent at least 31 minutes providing critical care services independent of any procedures. I had my documentation right there – 11:40 PM to 12:25 AM and I had each procedure note timed with a different time either before or after the critical care times. However, the auditors stated that since the time crossed midnight, 20 minutes of the time had to be accounted to one calendar day and 25 minutes to the next calendar day and since neither of the days’ time was >31 minutes, I couldn’t bill any critical care charges and in fact, was not allowed to bill anything. I had to give back $175.

Before this, I had been a documentation freak so my notes were actually very well-documented and so the amount I had to pay back to Medicare was truly trivial. The OIG spent many times that much in salary, hotels, food, and airfare for the inspectors that they sent to Columbus. My ex-partner got nothing as a “whistle-blower” and our University did not get a resultant PATH audit.

Our electronic medical records now make it simple to ensure that each note has the required number of body parts examined and the correct minimum number of systems documented to be reviewed in the review of systems. The PATH audits have gone away because there just isn’t any money in it for the OIG anymore. However, the legacy of the PATH audits is the topic of my next post – the cluttering of physician progress notes with excess documentation by doctors who do electronic medical record documentation overkill to avoid even a chance of not having enough documentation to support a Medicare bill in the event of an audit.

January 23, 2016