Home Health & Hospice Week

Warning: Employees reporting overpayments are potential whistleblowers.

As the first case in which a court interprets the Affordable Care Act’s 60-day overpayment rule, Kane v. Healthfirst, Inc. et al. may trigger a wave of regulatory and enforcement changes. Here are the top three effects, as predicted by attorneys Thomas Ferrante Jr.and Rhada Bachman of Carlton Fields Jorden Burt in a recent analysis:

1. Impact on Enforcement: “This ruling gives providers a real sense for how courts (and the Department of Justice) will interpret the 60-day requirement,” Ferrante and Bachman wrote. In this case, the court has acknowledged that a mere allegation of an overpayment may trigger the start of the ACA’s overpayment clock (see story, p. 332). The court’s ruling should give more teeth to the 60-day rule, which previously had a fragmented interpretation.

2. Future Whistleblowers: Additionally, the court case “provides a strong foundation for potential whistleblowers who may have been equally unsure of the real meaning behind ‘identification,’” Ferrante and Bachman said.

3. Finalized Regulations: Finally, the Centers for Medicare & Medicaid Services has likely been waiting for the court to rule on this pending motion to dismiss before issuing its final regulations for the 60- day rule, Ferrante and Bachman noted. So you should “anticipate that the court’s ruling here likely will embolden CMS to finalize a more restrictive set of regulations addressing the 60-day rule.”