Contact Us
Categories
- DEI
- Medical Cannabis
- SB 47
- Workplace Violence
- Assisted Living Facilities
- Department of Health and Human Services' Office of Civil Rights
- Medical Residents
- EMTALA
- FDA
- Reproductive Rights
- Roe v. Wade
- SCOTUS
- Medical Spas
- medical billing
- No Surprises Act
- Mandatory vaccination policies
- Workplace health
- Coronavirus Aid, Relief and Economic Security Act
- Code Enforcement
- Department of Labor ("DOL")
- Employment Law
- FFCRA
- CARES Act
- Nursing Home Reform Act
- COVID-19
- SB 150
- Acute Care Beds
- Clinical Support
- Coronavirus
- Emergency Medical Services
- Emergency Preparedness
- Families First Coronavirus Response Act
- Family and Medical Leave Act (“FMLA”)
- KBML
- medication assisted therapy
- Department of Health and Human Services
- Legislative Developments
- Corporate
- United States Department of Justice ("DOJ")
- Employee Contracts
- Non-Compete Agreement
- Opioid Epidemic
- Sexual Harassment
- Health Resource and Services Administration
- House Bill 333
- Litigation
- Medical Malpractice
- Senate Bill 79
- Locum Tenens
- Senate Bill 4
- Physician Prescribing Authority
- Chronic Pain Management
- HIPAA
- Prescription Drugs
- "Two Midnights Rule"
- 340B Program
- EHR Systems
- Electronic Health Records (“EHR")
- Hospice
- ICD-10
- Kentucky minimum wage
- Minimum wage
- Primary Care Physicians ("PCPs")
- Skilled Nursing Facilities (“SNFs”)
- Uncategorized
- Affordable Insurance Exchanges
- Compliance
- Department of Health and Human Services (HHS)
- Drug Screening
- Fraud
- Health Care Fraud
- HIPAA Risk Assessment
- HPSA
- KASPER
- Kentucky Board of Medical Licensure
- Kentucky’s Department for Medicaid Services
- Mental Health Care
- Office for Civil Rights ("OCR")
- Office of Inspector General of the United States Department of Health and Human Services (OIG)
- Pharmacists
- Physician Assistants
- Qui Tam
- Stark Laws
- Urinalysis
- Accountable Care Organizations (“ACO”)
- Affordable Care Act
- Alternative Payment Models
- Anti-Kickback Statute
- Centers for Medicare & Medicaid Services (“CMS”)
- Certificate of Need ("CON")
- Charitable Hospitals
- Data Breach
- Electronic Protected Health Information (ePHI)
- False Claims Act
- Federally Qualified Health Centers (“FQHCs”)
- Fee for Service
- Health Information Technology for Economic and Clinical Health Act (HITECH Act)
- Health Insurance Portability and Accountability Act of 1996 (HIPAA)
- Health Professional Shortage Area ("HPSA")
- Hospitals
- HRSA
- Kentucky Board of Nursing
- Limited Services Clinics
- Medicaid
- Medical Staff By-Laws
- Medically Underserved Area ("MUA")
- Medicare
- Mid-Level Practitioners
- Part D
- Patient Protection and Affordable Care Act (“ACA”)
- Rural Health Centers (“RHCs”)
- Rural Health Clinic
- Telehealth
- American Telemedicine Association (“ATA”)
- APRNs
- Criminal Division of the Department of Justice (“DOJ”)
- Health Care Fraud Prevention and Enforcement Action Team (“HEAT”)
- Hydrocodone
- Kentucky Pharmacists Association
- Qualified Health Care Centers (“FQHC”)
- Telemedicine
- United States ex. Rel. Kane v. Continuum Health Partners
- Webinar
- Agreed Order
- Chain and Organization System (“PECOS”)
- Chiropractic services
- Clinical Laboratory Improvement Amendments of 1988 (“CLIA”)
- Douglas v. Independent Living Center of Southern California
- Drug Enforcement Agency ("DEA")
- Emergency Rooms
- Enrollment
- Hinchy v. Walgreen Co.
- Jimmo v. Sebelius
- Kentucky Senate Bill 7
- Maintenance Standard
- Medicare Part D
- Minors
- Ophthalmological services
- Overpayments
- Physician Compare website
- Re-validation
- Texting
- Vitas Innovative Hospice Care
- 2014 Medicare Physician Fee Schedule (“PFS”)
- 501(c)(3)
- Affinity Health Plan
- All-Payer Claims Database ("APCD")
- Appeal
- Cadillac tax
- Centers for Disease Control and Prevention
- Chronic Care Management
- Community health needs assessment (“CHNA”)
- Compliance Officer
- Compounding
- Condition of Participation ("CoP")
- CPR
- Denied Claims
- Dispenser
- Drug Quality and Security Act (“DQSA”)
- Essential Health Benefits
- Federation of State Medical Boards (“FSMB”)
- Food and Drug Administratio
- Form 4720
- Grace Period
- HealthCare.gov
- Home Medical Equipment Providers
- House Bill 3204
- ICD-9
- Individual mandate
- Inpatient Care
- Kentucky Medical Practice Act
- Kindred v. Cherolis
- Kynect
- Licensure Requirements
- Long-term care communities
- Long-Term Care Providers ("LTC")
- Mobile medical applications ("apps")
- Model Policy for the Appropriate Use of Social Media and Social Networking in Medical Practice (“Model Policy”)
- National Drug Code ("NDC")
- National Institutes of Health
- New England Compounding Center ("NECC")
- Nonprofit hospitals
- Outsourcing facility
- Personal Service Entities
- Physician Payments
- Ping v. Beverly Enterprises
- Power of Attorney ("POA")
- Prescriber
- Qualified Health Plan ("QHP")
- Social Media
- Spousal coverage
- State Health Plan
- Sustainable Growth Rate (“SGR”)
- UPS
- “Superuser”
- "Plan of Correction"
- Advanced Practice Registered Nurses
- Arbitration
- Audit
- Autism/ASD
- Business Associate Agreements
- Business Associates
- Call Coverage
- Daycare centers
- Decertification
- Department of Medicaid Services’ (“DMS”)
- Division of Regulated Child Care
- Doe v. Guthrie Clinic
- EHR vendor
- Employer Group Health Plans
- Employer Mandate
- ERISA
- Fair Labor Standards Act (FLSA)
- False Billings
- Group Purchasing Organizations ("GPO")
- Health Professional Shortage Areas (“HPSA”)
- Health Reform
- Home Health Prospective Payment System
- Hospitalists
- House Bill 104
- Intermediate Sanctions Agreement
- Kentucky Health Benefit Exchange
- Kentucky House Bill 159
- Kentucky House Bill 217
- Licensed practical nurses (LPN)
- List of Excluded Individuals and Entities
- LLC v. Sutter
- Low-utilization payment adjustment ("LUPA")
- Meaningful use incentives
- Medicare Administrative Coordinators
- Medicare Benefit Policy Manual
- Medicare Shared Saving Program (MSSP)
- Network provider agreement
- Nonroutine medical supplies conversion factor (“NRS”)
- Nurse practitioners (NP)
- Office of the National Coordinator for Health Information Technology (“ONC”)
- Part A
- Part B
- Patient Autonomy
- Patient Privacy
- Payors
- Personal Health Information
- Physician Recruitment
- Physician shortages
- Provider Self Disclosure Protocol
- Quality reporting
- Registered nurses (RN)
- Residency Programs
- Self-Disclosure Protocol
- Senate Bill 39
- Senate Finance Committee Report
- State Medicaid Expansion
- Statement of Deficiency ("SOD")
- Trade Association Group Coverage
- Upcoding
- Abuse and Waste
- Center for Disease Control
- Compliance Programs
- Consumer Operated and Oriented Plan programs (“CO-OPS”)
- Critical Access Hospitals (“CAHs”)
- Essential Health Benefits (“EHBs”)
- Genetic Information Nondiscrimination Act ("GINA")
- Healthcare Information and Management Systems Society (HIMSS)
- Kentucky Cabinet for Health and Family Services
- Kentucky Health Care Co-Op
- Kentucky Health Cooperative (“KYHC”)
- Kentucky Primary Care Centers (“PCCs”)
- Managed Care Organizations (“MCOs”)
- Medicare Audit Improvement Act of 2012
- Occupational Safety and Health Administration (“OSHA”)
- Recovery Audit Contractors (“RAC”)
- Small Business Health Options Program (“SHOP”)
- Sunshine Act
- Employee Agreement
- Free Conference Committee Report
- Health Care Fraud and Abuse Control Program
- House Bill 1
- House Bill 4
- Kentucky “Pill Mill Bill”
- Pain Management Facilities
- Health Care Law
- Health Insurance
- Healthcare Regulation
McBrayer Blogs
DOJ Intervenes In Case Involving ACA’s 60-Day Overpayment Rule
Recently, the Department of Justice (“DOJ”) intervened in a qui tam whistleblower suit in the US District Court for the Southern District of new York, which involves Continuum Health Partners and several Mount Sinai-related hospitals. United States ex. Rel. Kane v. Continuum Health Partners, Inc. et al, (Civil Action, No. 11-2325(ER)). While DOJ intervention in whistleblower cases is not unusual, this case is significant because the DOJ’s complaint specifically alleges that the defendants failed to return Medicaid overpayments within 60 days, as required by the Affordable Care Act (“ACA”). The case is one of the first to explore the issues and interpret the requirements of the 60-Day Rule.
Section 6402(d) of the ACA requires “overpayment” to be reported, explained and returned within 60 days after the date on which it is identified or any corresponding cost report was due, if applicable. The term “overpayment” is defined as any funds that a person receives or retains under the Medicare or Medicaid programs to which that person is not entitled. Retention of an identified overpayment is now considered an “obligation” under the FCA, meaning that the government can pursue civil penalties against those who retain such overpayments as “reverse false claims.” The Centers for Medicare and Medicaid Services (“CMS”) issued a Proposed Rule for the 60-day requirement in 2012, but to date, those regulations have not been finalized. See 77 Fed. Reg. 32, 9179-9187 (Feb. 16, 2012). The Proposed Rule indicates that retaining payments past the 60 days can lead to civil monetary penalties between $5,000 to $11,000 per violation, liability for three times the claim’s value (i.e., treble damages), attorney’s fees and/or exclusion from federal health care programs.
In the pending case, the defendant hospitals were billing New York Medicaid as a secondary payor for Medicaid managed care patients enrolled with Healthfirst. The hospitals provided covered services to the enrollees and were obligated to accept Healthfirst’s reimbursement as payment in full. New York law prohibits the hospitals from billing New York Medicaid as a secondary insurer. The erroneous claims were not the fault of the providers, but instead were the result of coding errors by Healthfirst.
After the New York Office of the State Comptroller identified a small number of claims erroneously paid by Medicaid, a subsequent internal investigation was conducted. Robert Kane, an employee in the revenue department, was asked to investigate the issue. Kane determined that potentially 900 claims representing payments in excess of $1 million may have been wrongly submitted, and paid, by New York Medicaid. According to the allegations, he reported his findings in February 2011 and was subsequently terminated.
The hospitals did begin repayment, eventually repaying the full amount. The key issue, however, is whether the hospitals fraudulently delayed the repayments. The DOJ’s position is that the overpayments were identified in February 2011 (when Kane notified executives of the problem), but that repayment was not made until March 2013 and only after the government issued a Civil Investigative Demand.
The ambiguity concerning the “identification” of overpayments is a source of much industry confusion, especially because the proposed definition has not been finalized. The Proposed Rule states that an overpayment has been “identified” for purposes of the ACA when “the person has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate indifference of the overpayment.” Id. at 9180, 9187.
In light of Kane, it is evident that the DOJ is serious about not only enforcing the repayment rules under the FCA, but also pursuant to the ACA 60-Day Rule. Despite a lack of formalized guidance from CMS, providers must take great care to “identify” potential overpayments promptly and with thorough investigation. And, often whether an overpayment actually exists can be a legal question. Regardless, extreme care must be taken when overpayment is suspected.
If you have a question about overpayment, do not delay – contact a McBrayer healthcare attorney today.
Lisa English Hinkle is a Member of McBrayer law. Ms. Hinkle concentrates her practice area in health care law and is located in the firm’s Lexington office. She can be reached at lhinkle@mcbrayerfirm.com or at (859) 231-8780, ext. 1256.
Services may be performed by others.
This article does not constitute legal advice.