Annals of Health Law
READY OR NOT
agency will “review Medicare payments to hospitals to determine
compliance with selected billing requirements.” 191 Further, the OIG “will
use the results of these reviews to recommend recovery of
overpayments.” 192 The Work Plan describes an auditing method based on
computer matching and data mining techniques to select hospitals that may
be at risk for overpayments. 193 The government is prioritizing the
identification and pursuit of improperly retained payments for Medicare
services. Presumably, the $850 million in reimbursements CMS has set
aside for FY 2013 for hospitals satisfying performance criteria of VBP
programs comprise a significant component of CMS hospital payments
targeted for audits under the Work Plan agenda. 194
The FCA is the legislative vehicle authorizing the government’s
recoupment of improperly retained payments from the Medicare program.
The Act sets forth that an “obligation” to pay includes “an established duty,
whether or not fixed, arising . . . from the retention of any overpayment.” 195
Under FERA’s amendment, mere retention of an overpayment where an
obligation to repay existed in no uncertain terms amounts to a violation of
an “established duty” and consequently gives rise to potential liability under
the FCA. 196 Moreover, under the 2009 FERA amendments, there is no
longer a need for a person to have taken an affirmative act – submission of
a false statement or record – in order to have concealed, avoided, or
decreased an obligation to the government under the statute. 197 Congress
clarified the obligation to refund government monies with FERA in 2009
and then again with PPACA in 2010. These two statutes amended the civil
False Claims Act by expanding the scope of the obligation to refund an
overpayment and rendering retention of funds less defensible. 198 The FCA
provisions governing providers’ obligations to return government funds
carry significant and unique implications for VBP program participants.199
191. See 2012 WORK PLAN, supra note 86 at I- 5.
194. Administration Implements New Health Reform Provision, supra note 17.
195. 31 U.S. C. § 3792(b)( 3).
196. See id.; see also Rhoad, supra note 91, at 18.
197. 31 U.S. C. § 3729(a)( 1)(G) is the authority for the “reverse false claim” provision.
For a discussion, see generally Nadler, supra note 91; Rhoad, supra note 91.
198. 31 U.S. C. § 3729(a)( 1)(G), amended by FERA. PPACA’s provision impacting
overpayment obligations can be found at 42 U.S. C. § 1320a-7k(d). For a discussion, see
generally Hilgers & Welch, supra note 77; Stephen J. Chananie et al., Disclosing and
Refunding Overpayments in Healthcare Cases, 24 THE HEALTH LAWYER 16, 16 (Feb. 2012),
available at http://www.americanbar.org/content/dam/aba/publishing/health_lawyer/
199. For a thorough discussion of overpayment issues, see generally Chananie et al.,
supra note 198.