One of the few silver linings for providers in the final overpayments rule released Feb. 12 is that the “look-back” period within which CMS will go after provider overpayments was reduced to just six years from 10. But that won’t necessarily stop federal prosecutors from going after them from other years.
But not so fast, says attorney David Honig of law firm Hall Render Killian Heath & Lyman in Indianapolis. Though CMS may only entertain claims going back six years, that won’t necessarily stop federal prosecutors from go after them for years before that.
The reason is that, as Part B News has reported (subscription), overpayments have for some time been prey for prosecutors under the False Claims Act (FCA). If the provider doesn’t pay them back within 60 days of discovery -- or from when the law determines they should have discovered them -- the overpayments can be considered fraud.
Ten years is the “outer limit” of the look-back period in FCA for legal prosecution of false claims -- that is, six years unless relevant facts later come to light, “but in no event more than 10 years after the date on which the violation is committed.”
CMS noted that commenters to the proposed rule had raised the point that under the “reopening” U.S. statutes, Medicare contractors “may reopen at any time” a case that they determine “was procured by fraud or similar fault” and sought clarification that this did not apply to overpayments under the rule.
Instead, CMS said “we see no reason to change the ‘fraud or similar fault’ aspect of the reopening rule… We note that fraud investigations and judicial proceedings can require an extended period of time beyond the date the claim was filed to resolve, which counsels against imposing a limitation on reopening determinations procured by fraud or similar fault.”
“Given that every FCA case includes an aspect of ‘fraud or similar fault,’” says Honig, “I think this regulation offers limited comfort.”
Honig thinks the six-year window may be all you have to worry about “in a case where there is absolutely no question that the original overpayment was purely accidental and unknown, and there is absolutely no question that the overpayment was identified in good faith more than six years ago, and, most important of all, there is absolutely no question that the overpayment was neither the result of fraud nor covered up.”
But, “given that we are often dealing with qui tam relators who make accusations of fraud or with assumptions of fraud from the government, the regulation does not offer complete and final assurances,” adds Honig. “Providers must still review any overpayment, not just to determine the amount, but to determine how they occurred.”
This rule promises more headaches for providers than the look-back window -- you also need to know what constitutes an overpayment in the eyes of CMS, how to deal with hints that you have one and how to investigate them thoroughly. Sign up today for the webinar New 60-day Overpayment Rule: Expert guidance to avoid errors and noncompliance penalties on March 23. Click here to learn more.