CMS overpayment rule may bring more whistleblower, false claims cases

The rule requires providers to return Medicare overpayments within 60 days of identifying them
The rule requires providers to return Medicare overpayments within 60 days of identifying them

A rule released earlier this year by the Centers for Medicare & Medicaid Services targeting overpayments may lead to an increase in cases involving the regulation, according to law experts.

The CMS' Medicare overpayments rule, released in February, requires providers to return excessive reimbursement within 60 days of identifying them, as mandated by the Affordable Care Act.

That regulation landed a New York hospital group in hot water when a whistleblower alleged that it kept $844,000 in Medicaid overpayments past the ACA-required 60 days. Mount Sinai Health System agreed last week to pay $2.95 million to settle the “reverse false claims” allegations.

In the wake of the hospital group's settlement and the CMS overpayment rule, many suspect the number of issues and cases relating to the 60-day rule will increase.

“I see no reason to think that litigation won't increase on 60-day rule and reverse false claims allegations,” Tony Maida, an attorney with McDermott Will & Emery LLP, told Bloomberg BNA. “Relators and DOJ have already begun adding allegations of a knowing failure to return overpayments in FCA complaints.”

To avoid lawsuits or government prodding into overpayments retained after that 60-day mark, “providers clearly have a duty to establish and conduct a rigorous compliance program that enables overpayments to be identified, quantified, reported and refunded,” noted Kenneth Marcus, an attorney with Honigman Miller Schwartz & Cohn LLP.

Providers at the very least should strive to do better than Mount Sinai, the “poster child” for how providers shouldn't conduct themselves during a possible overpayment scenario, Marcus added. The hospital system fired the employee who identified the overpayment, stalled in reporting it and did not fully disclose information regarding the overpayment, officials said.

While the 60-day rule itself may not immediately result in more overpayment-related cases, Marcus warned that “enforcement agencies now have a rulebook by which to play.”