For years, courts have held that it is a violation of the False Claims Act (FCA) when a provider has concealed or improperly avoided or decreased its obligation to pay the government, by failing to disclose and refund clear overpayments. The liability is founded on the basis that the provider has an obligation to notify Medicare, of the overpayment, in its annual cost reports or otherwise.
With the enactment of the Patient Protection and Affordable Care Act of 2010, 42 U.S.C. § 1320a-7k(d), federal law explicitly provides for liability of providers when overpayments are retained. For purposes of subsection 1320a-7k(d), “overpayments” are defined as “Medicare funds received or retained to which a person is not entitled, after applicable reconciliation.” Such overpayments must be reported and returned by the later of sixty days after they were identified or the date any applicable cost report is due. Any overpayment retained after this deadline is defined as an “obligation” within the meaning of the FCA.
This section of the Act, entitled “Reporting and Returning of Overpayments,” requires a person who has received an overpayment to report and return the overpayment to HHS, the State, an intermediary, a carrier, or a contractor, as appropriate, and to notify the HHS, State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment.
Examples of “overpayments” are:
- Medicare payments for noncovered services.
- Medicare payments in excess of the allowable amount for an identified covered service.
- Errors and nonreimbursable expenditures in cost reports.
- Duplicate payments.
- Receipt of Medicare payment when another payor had the primary responsibility for payment.
Examples of overpayments also include:
- A provider or supplier reviews billing or payment records and learns that it incorrectly coded certain services, resulting in increased reimbursement.
- A provider or supplier learns that a patient death occurred prior to the service date on a claim that has been submitted for payment.
- A provider or supplier learns that services were provided by an unlicensed or excluded individual on its behalf.
- A provider or supplier performs an internal audit and discovers that overpayments exist.
- A cost report provider receives an overpayment and fails to refund to Medicare after the applicable reconciliation takes place.
Whistleblower lawsuits based on hospital system retention of overpayments can be complex. Contact our whistleblower lawyers for more information.