First Consideration: Providers Have Sixty Days from Identifying the Overpayment to Report and Return the Overpayment
If a person (e.g., a physician, supplier, or any individual or entity that is not a Medicare patient) receives an overpayment from a Medicare payor, the person generally must report the overpayment (including a description of the reason for the overpayment) and return the overpayment to the relevant payor within sixty days of the date on which the physician or other supplier identified the overpayment (or knowingly received or retained an overpayment). Federal law also contains a “lookback period,” which means that the provider must report and return an overpayment if the provider identifies the overpayment within six years of the date that the overpayment was received.
Once a provider identifies an overpayment, the provider has several avenues through which to disclose and return the overpayment, including via the applicable claims adjustment or other reporting process required by the relevant Medicare Administrative Contractor (“MAC”), via the U.S. Department of Health and Human Services – Office of Inspector General’s (“HHS-OIG”) self-disclosure protocol, or the Centers for Medicare & Medicaid Services’ (“CMS”) voluntary self-referral disclosure protocol.
Second Consideration: Retaining Overpayments Can Risk Liability for Providers Under the False Claims Act (“FCA”)
If a provider knowingly retains an overpayment, regulators could try to find a provider liable under the False Claims Act, which imposes criminal and civil liability on any person or entity who submits, or causes the submission of, a false or fraudulent claim to the federal government, under the theory that the provider conspired to defraud the federal government. Penalties under the FCA are steep and include, among others, the imposition of substantial fines, treble damages (up to three times the amount of the overpayment received), and exclusion from participation in federal and state healthcare programs such as Medicare and Medicaid. These penalties could apply to physician-employees of employers who receive the overpayment if the physician-employee has notice of the overpayment.
If you need assistance disclosing a billing error or overpayment or would like to discuss this blog post, you may contact our healthcare law firm at (404) 685-1662 (Atlanta) or (706) 722-7886 (Augusta), or by email, info@littlehealthlaw.com. You may also learn more about our law firm by visiting www.littlehealthlaw.com.