Ask the legal expert: What are the rules on the mandatory reporting of government overpayments?

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Attorney John Durso, Ungaretti & Harris LLP
Attorney John Durso, Ungaretti & Harris LLP
Q: How much responsibility lies with us to find out if we've been overpaid by some government program? I've been told we have mandatory reporting of overpayments.

A: Providers' response to suspected overpayments could prevent damages and penalties under the False Claims Act, and civil monetary penalties and exclusion from participation in the Medicare and Medicaid programs.

In the long-term care setting, overpayments might include duplicate payments, payments made after resident discharge and payments made for deceased residents. The Affordable Care Act sets a 60-day time limit for providers to disclose and return identified overpayments.

The 60-day time limit is triggered when a provider has actual knowledge or acts in reckless disregard or deliberate ignorance of an overpayment. This definition currently applies only to overpayments under Medicare Parts A and B, but the overpayment requirements in the ACA (including the 60-day period for reporting) also apply to the Medicaid, Medicare Advantage and Medicare Part D programs.

Until the Centers for Medicare & Medicaid Services proposed regulations for these programs and final regulations for Medicare Parts A and B, all providers should operate under the statutory guidance in effect since 2010, and should report and return overpayments within 60 days of discovery.

Given the government's intent to recover healthcare dollars, providers should investigate suspected overpayments, carefully document investigations and report and refund overpayments. When reporting overpayments, providers should work with counsel to ensure accurate reporting of overpayments and possible mitigation of overpayment liability.
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