On May 24th and 25th, 2016, McBrayer held a webinar on what providers should know regarding overpayments and the False Claims Act. Lisa English Hinkle and Chris Shaughnessy, McBrayer healthcare law attorneys, guided participants through the interplay between overpayments from various federal healthcare programs and violations of the False Claims Act that can accrue heavy penalties. For further information on this webinar, contact McBrayer’s Marketing Director, Morgan Hall, at mhall@mmlk.com or 859-231-8780.

Click here to watch video.

Some of the information shared by the presenters is also summarized below.

THE SCOPE OF THE PROBLEM

  • Medicare pays over 4.4 million claims every single working day, paying over $430 billion per year for the benefit of more than 45 million beneficiaries.
  • Medicaid pays 2.5 billion claims each year, covering more than 54 million beneficiaries in 56 state and territory-administered programs.
  • In Kentucky alone, a CMS report projects that the rate of Medicare overpayments will have been 15.4% for 2015, which means that 1 out of every 7 Medicare payments to Kentucky providers is projected to have been an overpayment.
  • Kentucky has the seventh highest percentage of projected overpayments for 2015.

THE FALSE CLAIMS ACT

  • The FCA provides civil penalties for anyone who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval, or has possession of money owed to the government and knowingly cause to be delivered less than all of that money.
  • “Knowingly” for FCA purposes also includes deliberate ignorance or reckless indifference to the truth.
  • The penalties for violation of the FCA are treble damages and a penalty of between $5,500 and $11,500 PER VIOLATION. These numbers add up quickly.
  • In addition to government investigations, violations of the FCA can be prosecuted by whistleblowers known as “relators,” who receive a portion of the government’s recovery against violators.

OVERPAYMENTS

  • Section 1128J(d)(1) of the Affordable Care Act requires a provider who receives an overpayment to report and return that overpayment within 60 days of the payment being identified. This is known as the “60-Day Rule.”
  • If an overpayment is not returned within 60 days, it can become a violation of the False Claims Act as a “reverse false claim.”
  • An overpayment has not been truly “identified” until a provider “has, or should have through the exercise of reasonable diligence, determined that the person has received an overpayment and quantified the amount of the overpayment.”
  • Recipients of overpayments are obligated to report and return overpayments “within 6 years of the date the overpayment was received.”

PREVENTING FALSE CLAIMS

  • 65.4% of the projected overpayments in the CMS report cited “insufficient documentation” as the cause of the overpayment, which means that one of the easiest ways to avoid potential FCA liability is to provide proper documentation for all claims.
  • Every healthcare provider should have a compliance plan and program, and compliance training for all personnel.