Medicare Compliance & Reimbursement

Plus, what steps you should take now to protect yourself from enforcement actions.

As the first case in which a court needs to interpret the Affordable Care Act’s (ACA) 60-day overpayment rule, Kane v. Healthfirst, Inc. et al. will very likely 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 an Aug. 5 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. 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 (CMS) 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.”

Strategy: And with the pending finalized overpayment rule, along with a stricter interpretation and more vigorous enforcement of the rule, you need to take action now to stay out of the feds’ crosshairs. According to a recent report by attorneys Erin Duffy and Alison Rosenblum of Duane Morris LLP, you should take the following steps to protect yourself:

• Promptly investigate all reports of potential overpayments;
• Independently review claims for potential overpayments on a routine basis;
• Document all steps you’ve taken to investigate any alleged overpayments; and
• Maintain policies and procedures designed to address how you’ll disclose and repay identified overpayments to the federal government.

Resources: For more on the U.S. District Court for the Southern District of New York case Kane v. Healthfirst, Inc. et al., visit http://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2011cv02325/377919/63/. To read about CMS’ overpayment rule, go to https://www.federalregister.gov/articles/2015/02/17/2015-03072/medicare-program-reporting-and-returning-of-overpayments-extension-of-timeline-for-publication-of.