The Affordable Care Act requires that Medicare and Medicaid "overpayments" be reported and returned by the later of 60 days after the overpayment was "identified" or the date any corresponding cost report is due (if applicable). This standard is intended to encourage providers and suppliers to exercise reasonable diligence to determine whether an overpayment exists. Failure to identify and return overpayments could result in liabilities. There are several sources of liability.
The Fraud Enforcement and Recovery Act of 2009 ("FERA") amended the False Claims Act ("FCA") to hold providers liable for overpayments. In addition, providers face civil monetary penalties and exclusion from the Medicare and Medicaid programs.
Penalties can be up to $10,000 for each item or service, plus an assessment of up to three times the amount claimed for each such item or service. Also providers may be excluded from participation in federal health care programs, including Medicare and Medicaid.
Providers need to know how to identify overpayments and when to report them. Furthermore, they need to know the process for reporting them. An overpayment is "identified" when a person has actual knowledge of the existence of an overpayment or acts in reckless disregard or deliberate ignorance of the overpayment. The 60-day clock does not start ticking (i.e., an overpayment is not "identified") until after the provider has an opportunity to undertake a "reasonable inquiry" into the basis of the alleged overpayment. Centers for Medicare and Medicaid Services (CMS) does not dictate how a provider must conduct a reasonable inquiry. However, if a provider does not take the inquiry seriously and do a thorough review, CMS could view these actions as a reckless disregard or deliberate ignorance of the overpayment. Moreover, similar to the statute of limitations under the FCA, the look back period for overpayments is 10 years.
There is a self-reporting overpayment refund process where the provider coordinates the refund with the provider's local fiscal intermediary, carrier, or contractor. There are a couple self-disclosure protocols. One is a CMS Stark Self-Referral Disclosure Protocol (SRDP) which requires providers to refund the overpayment. Another is the OIG Self-Disclosure Protocol (SDP) requires the provider to refund and report the overpayment within 60 days. Organizations that already have a policy and procedure for self-reporting will need to amend them to conform to the new regulations. However, many organizations do not have a policy, so they will need to develop one.
The first step in developing a policy and procedure is to develop a standardized form. This will help ensure that key components are included and the review is thorough and comprehensive. Next, consider whether the investigation should be done under client-attorney privilege. If so, contact legal counsel before proceeding. Once the policy and procedures are developed, employees should be trained. A root cause analysis should be done to get to the underlying cause of the problem. Once the root cause is identified, a plan of correction should be developed that lays out exactly what will be done to prevent a future overpayment.
A root cause analysis is a process of asking "why?". CMS recommends asking "why" at least five times in a row to drill down on the problem. This increases understanding of the problem, helps staff use critical thinking skills, helps staff challenge the current situation or problem and gets to the root of the matter.
Why should you attend: With the passage of the Patient Protection and Affordable Care Act ("PPACA"), Medicare and Medicaid overpayments must be "reported and returned" within 60 days after they are "identified." Failure to report and return an overpayment within 60 days of identifying its existence can result in liability under the False Claims Act including $10,000 civil penalties for each violation, plus three times the government's losses.
Healthcare providers won't want to miss this insightful presentation that will review the key components of the laws and learn the steps necessary to stay in compliance and minimize the risks of not reporting and returning Medicare and Medicaid overpayments.
Areas Covered in the Session: