Home Health & Hospice Week

Suits’ outcome could impact 60-day rule.

The fact that the Centers for Medicare & Medicaid Services has yet to finalize the 60-day overpayment rule apparently hasn’t stopped the Department of Justice from moving forward with recovering overpayments according to the 60-day timeframe.

Case in point: The DOJ intervened in a whistleblower case that alleges the defendants failed to return Medicaid overpayments within 60 days, as mandated by the Affordable Care Act. The DOJ alleges that Continuum Health Partners, which operates Beth Israel Medical Center and St. Luke’s-Roosevelt Hospital Center, knowingly failed to return overpayments owed to Medicaid, according to Boston-based attorney Brian Dunphy with the law firm Mintz Levin Cohen Ferris Glovsky and Popeo.

After a computer glitch that erroneously billed both the managed care organization and Medicaid for the same services, Continuum identified more than 900 potential improper claims totalling approximately $1 million in overpayments. The DOJ alleges that Continuum failed to repay the overpayments within 60 days of identifying the improper claims and instead repaid only in “small batches” of the claims over the course of two years, Dunphy explains.

Significance: “The fact that CMS has delayed the guidance for Medicare Parts A and B, despite having previously finalized guidance for Medicare Parts C and D, suggests that CMS does not necessarily intend to adopt a one-size-fits-all approach to the overpayment rules,” attorneys Scott Stein and Brenna Jenny wrote in a blog post for law firm Sidley Austin.

“In its briefing, DOJ has argued that critical provisions from the MA/Part D final rule, such as when a payment has been ‘identified,’ should be considered equally applicable in other contexts,” Stein and Jenny stated. “CMS’ delay in finalizing regulations for Part A/B arguably undercuts that contention.”

Further, the delay makes the Continuum case’s outcome even more significant, “as CMS will likely have an opportunity to respond to the court’s approach in its final rule,” Stein and Jenny noted.

Another FCA qui tam lawsuit tackles the definition of the term “knowledge” of an overpayment, which is the same standard used for the term “identify” under the proposed 60-day rule, Dunphy notes. In United States v. Lakeshore Med. Clinic, Ltd., the defendant allegedly violated the FCA’s “reverse false claims” provisions by failing to return overpayments.