Being Dutiful About Compliance

Health care providers now more than ever must be proactive when it comes to addressing compliance and billing issues with Medicare and Medicaid.  Recently, federal and state governments have been devoting increased resources to detecting and combatting fraud in the health care industry.  At the federal level, both the Department of Justice and the United States Attorney’s Offices have increased the number of prosecutors and investigators assigned to look into potential health care fraud cases.

In addition to the federal government, states have also increased the resources they are devoting to uncovering healthcare fraud.  New Jersey in particular has joined several other states in setting up a separate civil agency to investigate health care providers.  This agency has been given the power to refer cases to prosecuting authorities for criminal charges.

With so many resources being employed to detect “fraud,” health care providers are well-advised to stay ahead of the curve by identifying potential problem areas and addressing them before an audit or investigation begins.  One particular area to providers should pay close attention to is “overpayments”.  The Affordable Care Act requires health care providers to return “overpayments” from a government payer within 60 days of the “overpayment” being identified.  Failure to do so ostensibly subjects the provider to liability under the False Claims Act for “knowingly and improperly avoiding or decreasing” an obligation to the government, i.e., the failure to return an overpayment to Medicare or Medicaid.

As yet, there is no official guidance as to what “identified” means for purposes of Affordable Care Act/ False Claims Act liability, but some aggressive prosecutors are suggesting that the 60 day time clock starts ticking as soon as notice of a potential overpayment is received.

To be safe, providers would do well to adopt a standard policy and working procedure to promptly refund any overpayments and make sure that their revenue cycle managers understand the policy.

For more information see,   Jack Wenik.  “Health Care Investigations: The ‘Squeeze’ May Soon Come to N.J.”  New Jersey Law Journal.  Vol. 205. No. 5. (2011) 384.