The Centers for Medicare and Medicaid Services (CMS) continues to mull over the knotty problem of what it means to identify an overpayment from the government.  Healthcare providers do not have the same luxury.

Five  years ago, the Affordable Care Act required a provider that received an overpayment from the government to report and repay it within 60 days of identifying the overpayment. 42 U.S.C. 1320a-7(k)(d). Not satisfied with simply requiring prompt repayment, Congress also decreed that failure to make repayment within the 60-day limit creates potential liability under the False Claims Act.  80 FR 8248.  In 2012, CMS stirred up controversy when it issued draft guidance implementing the 60-day rule.  77 FR 9179.  The proposal was never finalized. 80 FR 8248. In an unusual move, CMS recently announced that it will postpone its rulemaking for yet another year beyond the normal three year limit.  80 FR 8247.

Like CMS, each provider must grapple with the question of whether an overpayment has been identified, even though that term is not defined in the statute.  Whatever its details, the CMS rulemaking is certain to require an organization to make a reasonable inquiry into information it has received about an overpayment rather than hide its head in the sand (known legally as deliberate ignorance or willful blindness).

Although CMS may have postponed its implementing regulations, the statutory mandate is in effect.  80 FR 8248. Relators and the government have begun seeking up to treble damages by litigating against providers for failure to make timely repayment.  For example, the government recently intervened after a relator sued Continuum Health Partners, Inc. in New York.  See Complaint. 

That litigation illustrates that relators and the Department of Justice are not waiting for CMSand neither can you.  Despite uncertainty about how the regulations will try to incorporate the incredible variety of situations possible in health care, each provider must remain vigilant about identifying and returning overpayments it may have received from the government or face the enhanced penalties that may result.

This post was written with contributions from Stanford Moore.