Transcript Presentation Title

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PRACTICAL SIDE OF INVESTIGATING
AND REPORTING OVERPAYMENTS
ABA Health Law Section
Emerging Issues in Healthcare Law
February 24, 2012
San Diego, California
Bill Mathias
Ober | Kaler
410-347-7667
[email protected]
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Now What Do I Do?
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Why Are Internal Investigations
Important?
 Increasing promotion of selfidentification and self-disclosure
 60-day repayment of overpayments &
potential FCA liability
 Enforcement remains aggressive
 Federal Level
 State Level
 Government view Fraud, Waste, and
Abuse as a significant source of
revenue
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When Must You Investigate?
 Any time there is:
 An allegation of a violation of law.
 A suggestion of improper conduct.
 A potential for an overpayment by the
government.
 A potential for a significant overpayment by a
commercial insurer or other third-party payor.
 A potential for whistleblower activity.
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How Much Must You Investigate?
 Depends on the facts.
 Initially, need to investigate enough to gauge the
credibility of the allegation.
 Believable on its face
 Documentary evidence exists
 Dollar amount of potential exposure impacts
practical decisions regarding scope, depth, and
personnel involved in investigation.
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Who Should Investigate?
 Depends on the type of issue:
 Human resources issues (such as sexual
harassment or discrimination) – investigated by
HR Department and/or employment counsel.
 Other general issues (non-criminal in nature,
unlikely to result in substantial civil liability) –
initially investigated in-house.
 Consider whether attorney-client privilege may
be important? If so, involve counsel (in house
or outside).
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Who Should Investigate?
 Criminal issues or issues likely to result in
significant civil liability (whistleblower situations,
high dollar overpayments, systemic problems) –
shouldn’t be investigated without legal counsel.
 Attorney-client privilege important – may want
outside counsel involved to strengthen
argument supporting attorney-client privilege.
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Conduct Your Investigation
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Results of Your Investigation
 No problem  Done!!!
 Problem  Fix it???
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Fix The Problem
 Take corrective action
 Assess existing compliance process and policies to
identify shortfalls
 Discipline responsible employees, as appropriate
 Add policies, procedures, or reporting layers as
necessary to prevent reoccurrence
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Now What?
 Need to discuss with client:
 Whether the past conduct needs to be reported
 If so, to whom?
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Disclosure Calculus
 Decision to disclose is a business decision –
weighing potential risks and benefits.
 Where available, disclosure offers protections
too significant to pass up
 Useful for substantial violations of law
 More difficult question for more minor or isolated
violations – time + expense
 Continuing focus on compliance programs, good
faith cooperation, and prompt disclosure
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What Gets Disclosed Where?
 To OIG – only “potential fraud against the Federal health
care programs, rather than merely an overpayment.”
 “Potential fraud” does not include Stark only violations
– must be at least a “colorable” AKS violation
 To CMS – Stark only violation
 To Contractor – “merely an overpayment”
 To U.S. Attorney’s Officer – depends
 To State – depends on state laws
 NY OIG has been aggressive in seeking disclosures
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Practical Issues with
Proposed 60-Day Rule
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Good & Bad of Investigations
 Good news
 CMS recognized importance of investigating before
overpayment can be identified and 60-day clock violated
 Bad news
 Must conduct “reasonable inquiry” to determine if
overpayment exists
 Not sure what it means to investigate with “all deliberate
speed”?
 Do you have to investigate all reports of overpayments?
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Anti-kickback Violations
 Claims submitted in violation of AKS
 Don’t meet conditions of payment
 False or fraudulent claims
 Overpayment
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Anti-kickback Violations (cont.)
 Party submitting claim is unaware of improper
arrangement
 No overpayment “identified”
 No reporting requirement
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Anti-kickback Violations (cont.)
 Party submitting claim has “sufficient knowledge” of
arrangement
 Obligation to report overpayment
 BUT repayment obligation suspended
 CMS will refer matter to OIG
 CMS expectation that OIG would seek repayment from
parties to kickback scheme, NOT “innocent” provider
reporting overpayment
 Doesn’t close the door – “the government may always
seek repayment of claims paid that do not satisfy a
condition of payment.”
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OIG Disclosure & 60-Day Rule
 Disclosure to OIG tolls 60-day repayment clock
 When OIG acknowledges acceptance into
program
 Time lab between submission and acceptance
 Disclosure to OIG satisfies 60-day reporting
obligation
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Self-Referral Disclosure Protocol
& 60-Day Rule
 Disclosure to CMS under SRDP tolls 60-day
repayment clock
 When CMS acknowledges acceptance into
SRDP
 Time lab between submission and acceptance
 Disclosure to CMS under SRDP does NOT satisfy
60-day reporting obligation
 Still must report under 60-day rule
 CMS seeks comment
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Pending Gov’t Investigation
 Rule doesn’t address effect of pending government
investigation on 60-day repayment obligation
 Is this part of investigation with “all deliberate
speed”?
 Presumably provider and gov’t disagree on
overpayment amount
 Is overpayment not quantified and thus not
“identified”?
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Formalized Refund Policy
 Use current contractor refund process
 CMS to develop uniform reporting form “eventually”
 Forms ask for claim numbers
 Claim numbers may not be readily available,
especially if refund based on statistical sampling
 Will letter to contractor describing the problem and
including a check be sufficient?
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Probe Samples & 60-Day Rule
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Probe sample shows overpayments
Further investigation conducted
Full sample required
When does 60-day repayment clock start to run on
probe sample?
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Why 10 Year Look-back?
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Current 4 year reopening on claims
FCA statute of limitations is 6 years
FCA statute of repose is 10 years
Why should look-back be 10 years?
 “further our interest in ensuring that overpayments are
timely returned to the Medicare Trust Fund.”
 If you reach FCA settlement of billing issue going back 6
years, do you have overpayment liability for remainder of 10
year look-back?
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Practical Problems of 10 Year Look-back
 Difficult to investigate issues back 10 years
 Need to consider how laws, regulations, and other
guidance changed over 10 years
 Need to expand record retention requirements
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Final Words of Advice
“Be careful out there”
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QUESTIONS?
Bill Mathias
Ober | Kaler
410-347-7667
[email protected]
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