During the course of a compliance audit a Medicare overpayment issue arises when the auditor determines that the documentation for certain CPT codes is inadequate to justify billing for the same. What to do and when to do it? There is of course an obligation to return funds that constitute an overpayment by the government. The Patient Protection and Accountable Care Act (“PPACA”) Section 6402(D)(2) provides that the money must be returned within 60 days after the date on which the report was identified; or the date any corresponding cost report is due. Failure of comply with the time frame under the PPACA can of course lead to False Claims Act liability.
The problem is that the term “identified” is not defined. There is a spectrum of potential definitions running from casual suggestion of a problem to a fully investigated and documented overpayment reduced to a specific sum. There is a variety of differing views as to which end of the spectrum was intended by Congress. What is a provider to do in the circumstances? Until there is a legal interpretation of the statute the safest option would be to make a payment and try to “true it up” later or request for its return if there is a subsequent determination that there was no overpayment. That is a messy business and recovery may be difficult. Perhaps a better option would be to act with common sense by acknowledging he issue and immediately set about applying diligence to determining the existence and amount of any overpayment. A hospital policy, adopted by the board that provides for an immediate investigation and determination in the event an issue of overpayment occurs and with an expressed intent to repay the overpayment upon the completion of the investigation and determination of the obligation would go along way to militate against any claim of an intent not to repay the government.