Beware broad definition for overpayments

Friday, March 2, 2012

WASHINGTON - Attorney Carla Hogan expects new details on a requirement that Medicare providers disclose and return identified overpayments within 60 days to generate considerable buzz.

CMS published a proposed rule in the Federal Register on Feb. 16 that fleshes out the requirement, including a broad definition for "overpayment." The agency will accept comments on the rule until April 16.

"A number of the proposed requirements will be viewed as burdensome, and will generate controversy and comment," said Hogan, a principal and chairwoman of the Health and Employment Practice Groups at Albany, N.Y.-based Tuczinski, Cavalier, Gilchrist & Collura. "The way they define overpayments is broad. You could have an overpayment because you billed for something you didn't deliver; you could also have an overpayment because someone put down the wrong date of service. There's a big difference between the two: One may or may not involve fraud; the other is a technical deficiency in the paperwork."

Hogan will give a presentation on overpayments on June 27 as part of the "HME Compliance Connection" webinar series spearheaded by the Pennsylvania Association of Medical Suppliers (PAMS) and supported by more than a dozen other state associations. 

Here are a few things that providers must know about overpayments, according to Hogan.

How to identify them

Hogan says there are three main ways that providers can identify overpayments: through actual knowledge, through some kind of tip, or through compliance programs.

"If you know of an overpayment, you have a duty to investigate and identify the magnitude of the overpayment. Once the overpayment is identified, within 60 days, it needs to be returned with reporting protocols. That makes providers nervous, because they have to explain to the government what happened."

It's a balancing act

Hogan says when providers discover an overpayment, they often struggle with what to do. They're frightened, but they're unsure "how deep they have to dig" into the matter, she said.

"There could be a significant refund to the government," Hogan said. "So you're balancing economic interests with regulatory requirements."

Things will never be perfect

Hogan says because providers will never be able to eliminate all errors, having an effective compliance program in place is a must.

"How could you eliminate the error of a doctor not keeping the proper documentation--you don't have control over their record keeping," she said. "But you can have a policy in place whereby you randomly audit the files from the doctor. These types of policies are not going to eliminate all errors, but they do tend to reduce the number of times they will happen."

The series runs through Oct. 24. To learn more, go to here.



I agree with your observation and protocol but may I remind you that unless Nichole Medical wins it&#39;s Appeal in The Third Circuit Court and the Decision of The Third District Court remains none of this will be pre-emptive against the attack by the MAC, RAC and PSC Auditors. All "pay and chase" auditors will be operating without control. Judge Cynthia Rufe has extended contractual auditors reaches to an outer perimeter that currently extends beyond The DOJ and The OIG. Her decision clearly stated; "This Court agrees that subjecting Medicare contractors to tort suits simply because they made incorrect decisions or failed to follow all required procedures in the course of dealing with providers would â&euro;œinhibit their function as independent decisionmakers.â&euro;<br />
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I can not strongly emphasize enough to everyone be aware her Decision as it reads is more theatening to the Industry currently than Competitive Bidding. It gives all Contracted Auditors Carte Blanche to do whatever they want without fear of any action from The Courts. She grants Auditors "omnipotent infallability"! As it was clearly pointed out in my successful appeal by the Medicare Appeals Council The PSC Auditors went over The DOJ and OIG in two separate years and The Third District Court didn&#39;t even flinch over these actions.<br />
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I can inform everyone their was a Ninth Circuit Court ruling filed by them "Admonishing" The DOJ in a case unrelated to The Nichole Medical Case but the issues for the admonishment were the same. It seems The U S Attorney&#39;s in the case were more concerned about winning above following appropriate rules and procedures and The Ninth Circuit Judges were NOT happy. We are hopeful The Third Circuit will follow their lead.